137 VBN Winter - Victorian Bar

Transcription

VICTORIAN BAR NEWS
No. 137
ISSN 0159-3285
WINTER 2006
First President of the Children’s
Court passes on the Baton
Welcomes: Justice Robert Redlich, Justice Marcia Neave, Honourable Justice Anthony L. Cavanough and
Judge Paul Grant
Farewells: Justice Stephen Charles, Master Bruce, Justice Alwynne Rowlands AO and
Brian Shaw QC
Obituary: Paul Ahearne
Defending Unpopular Causes in a Climate of Fear
The
Dreyfus Affair
First Indigenous Woman at the Bar: Linda A. Lovett
Children’s Court of Victoria
Celebrates its Centenary — and a Baton Change
Farewell to First President of the Children’s Court:
Judge Jennifer Coate
A Tribute to His Honour the Late Bill Morgan-Payler
A Bit About Words/
Chaps
Bar Dinner
David Hicks and the Military Commission — Is Australia Turning its Back on
International Law?
Women Barristers Association’s Third Annual “Meet and Greet” at the
Essoign
Speech at Dinner for Justice Susan Crennan
Victorian Bar Legal Assistance Scheme
(VBLAS)
Twenty-five Years of the Victorian Bar Readers’ Course
Galveston Decision
Advocacy in Practice
Australian Bar XI: Hong Kong Tour, Easter 2006
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VICTORIAN BAR NEWS
No. 137
WINTER 2006
Contents
EDITORS’ BACKSHEET
5 Diminishing Rights
CHAIRMAN’S CUPBOARD
7 Busy Winter for the Bar
ATTORNEY-GENERAL’S COLUMN
9 “We Must Inspire a Confidence in all Victorians
for a Justice System and Principles That Have
Meaning”
CORRESPONDENCE
10 Letter to the Editors
ETHICS COMMITTEE BULLETINS
11 Report of Disciplinary Proceedings
11 Barristers Acting as Migration Agents
WELCOMES
13 Justice Robert Redlich
13 Justice Marcia Neave
14 Honourable Justice Anthony L. Cavanough
16 Judge Paul Grant
FAREWELLS
17 Justice Stephen Charles
19 Master Bruce
20 Justice Alwynne Rowlands AO
21 Brian Shaw QC
OBITUARY
22 Paul Ahearne
NEWS AND VIEWS
24 Defending Unpopular Causes in a Climate of Fear
28 The Essoign Wine Report
29 The Dreyfus Affair
33 First Indigenous Woman at the Bar: Linda A.
Lovett
34 Children’s Court of Victoria Celebrates its
Centenary — and a Baton Change
37 Farewell to First President of the Children’s
Court: Judge Jennifer Coate
41 Legal Reporting Awards 2006
42 A Tribute to His Honour the Late Bill MorganPayler
44 A Bit About Words/Chaps
46 Bar Dinner
55 David Hicks and the Military Commission — Is
Australia Turning its Back on International Law?
57 Verbatim
58 Women Barristers Association’s Third Annual
“Meet and Greet” at the Essoign
60 Speech at Dinner for Justice Susan Crennan
63 Victorian Bar Legal Assistance Scheme (VBLAS)
65 Twenty-five Years of the Victorian Bar Readers’
Course
68 Galveston Decision
70 Advocacy in Practice
LAWYER’S BOOKSHELF
71 Books Reviewed
SPORT
77 Australian Bar XI: Kong Kong Tour, Easter 2006
Cover: The retirement and appointment of the two
Presidents of the Children’s Court of Victoria
— see pages 34–41.
Welcome Justice Redlich
Welcome Justice Neave
Welcome Justice
Cavanough
Welcome Judge Grant
Farewell Justice Charles
Farewell Master Bruce
Farewell Justice
Rowlands AO
Children’s Court of Victoria Celebrates its Centenary
— and a Baton Change
First Indigenous Woman
at the Bar: Linda A. Lovett
Farewell to First President of the Children’s Court:
A Tribute to His Honour
the Late Bill MorganPayler
Bar Dinner
Speech at Dinner for
Justice Susan Crennan
3
Victorian Bar Council
VICTORIAN BAR COUNCIL
for the year 2005/2006
*Executive Committee
Chairs of Standing Committees of the Bar Council
Clerks:
B *McMillan S.C., Ms C.F. (Chairman)
A *Shand QC, M.W. (Senior Vice-Chairman)
F *Dreyfus QC, M.A. (Junior Vice-Chairman)
D *Fajgenbaum QC, J.I.
G *Digby QC, G.J.
F *Dunn QC, P.A.
G *Colbran QC, M.J.
G *Lacava S.C., P.G.
D *Beach S.C., D.F.R. (Honorary Treasurer)
D *Riordan S.C., P.J.
D *McLeod S.C., F.M.
W *Neal S.C., D.J.
D *Jones, I.R.
G *Judd, K.E.
D *Alstergren, W.E.
R *Doyle, R.M.
L Hannebery, P.J. (Assistant Honorary Treasurer)
R *Fairfield, C.G.
D *Shaw, C.E.
D *Burns, A.G.
S *Powderly, L.M.
G *Anderson, K.J.D. (Honorary Secretary)
G *Neskovcin, P.A. (Assistant Honorary Secretary)
Ethics Committee
G *Lacava S.C., P.G. (Chair)
H *Merralls AM, QC, J.D.
C *Meagher ED, QC, D.R.
S *Willee QC, RFD, P.A.
S *Lally QC, W.F.
F *Gobbo QC, J.H.
A *Macaulay S.C., C.C.
G *Gordon S.C., Ms M.M.
R *Batten, J.L.
P *Williams, I.S.
D *Kirton. Ms C.E.
L *Lane, D.J.
F *Shiff, Ms P.L.
D *Duggan, Ms A.E.
VICTORIAN BAR NEWS
Editors
Gerard Nash QC, Paul Elliott QC and
Judy Benson
Editorial Board
Julian Burnside QC
Graeme Thompson
Editorial Consultant
David Wilken
Editorial Committee
John Kaufman QC, William F. Gillies,
Carolyn Sparke, Georgina Schoff,
4
Aboriginal Law Students Mentoring Committee
G *Golvan S.C., C.D.
Applications Review Committee
G *Digby QC, G.J.
Charitable and Sporting Donations Committee
Conciliators for Sexual Harassment and Vilification
B *Curtain QC, D.E.
Counsel Committee
G *Colbran QC, M.J.
Editorial Committee for In Brief and Website News
Section
D *McLeod S.C., Ms F.M.
Equality Before the Law Committee
A *Richards QC, Ms A.
Ethics Committee
G *Lacava S.C., P.G.
Human Rights Committee
D *Fajgenbaum QC, J.I.
Legal Assistance Committee
A *Macaw QC, R.C.
Readers’ Course Committee
B *Hill QC, I.D.
Continuing Legal Education Committee
G *Gordon S.C., Ms M.M.
New Barristers’ Standing Committee
G *Bingham, Ms S.L.
Past Practising Chairmen’s Committee
F *Costigan QC, F.X.
Professional Indemnity Insurance Committee
Professional Standards Education Committee
S *Willee QC, RFD, P.A.
Victorian Bar Dispute Resolution Committee
B *Levin QC, D.S.
Paul Duggan, Peter A. Clarke,
Victoria Lambropoulos, Richard Brear
and Peter Lithgow (Book Reviews)
David Johns (Photography)
Published by The Victorian Bar Inc.
Owen Dixon Chambers,
205 William Street, Melbourne 3000.
Registration No. A 0034304 S
Opinions expressed are not necessarily
those of the Bar Council or the Bar or
of any person other than the author.
Printed by: Impact Printing
69–79 Fallon Street,
Brunswick Vic. 3056
This publication may be cited as
(2006) 137 Vic B.N.
Advertising
Publications Management Pty Ltd
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Telephone: (03) 9888 5977
Facsimile: (03) 9888 5919
E-mail: [email protected]
Editors’ Backsheet
Diminishing Rights
A BILL OF RIGHTS?
debate on Victoria’s Bill of Rights,
sponsored by Deakin University
Law School, took place at the
Melbourne Town Hall on 22 May this year.
Julian Burnside QC and Robert Stary,
a western suburban solicitor, argued in
favour of the proposed Bill of Rights.
Peter Faris QC and Professor James Allan
from the University of Queensland argued
against the introduction of such legislation.
The main arguments put against the
proposed legislation were: (a) that it
takes power away from the elected legislature; (b) it leaves too much in the hands
of “unelected judges”; (c) it is ineffective;
(d) it is not necessary.
The proponents of the Bill referred to
the stringent provisions of the current
anti-terrorist legislation (which have
been canvassed in part in these pages in
previous issues as highlighting the need
for such a Bill). They also pointed to the
decision of the High Court in Al-Kateb,
where the majority of the High Court held
that an “illegal non-citizen” against whom
a deportation order was made could, if
there was no country to which he could be
deported, be held in custody indefinitely.
The rights of the individual can clearly
be curtailed by an omnipotent parliament.
Even in a federation, there is little protection for the individual except where
the legislature strays outside its proper
sphere of activity.
Usually legislation which inhibits individual rights or restricts prior freedoms
is enacted for a “good” reason. There is
an evil which requires to be righted or a
mischief to be corrected. However, once
a particular power has been given to the
executive, to the bureaucracy or to the
police or security forces, it is seldom
abandoned.
The history of the last 50 years is
replete with examples of legislation which
has removed rights which were once
regarded as sacrosanct — for example,
the right against self-incrimination (compulsory breath testing), the right not to be
convicted of an offence if one’s act was not
unlawful when performed (bottom of the
harbour legislation).
When compulsory breath testing was
A
introduced, the then Chairman of the Bar
Council pointed out that such legislation
abrogated the basic common law right of
the individual not to incriminate himself
or herself. We now accept that driving
under the influence is such an “evil” thing
that compulsory breath testing is “good”.
We seldom stop to consider that it does
in fact cut across what the common law
courts once regarded as “rights” of the
individual.
When John Howard as Treasurer
introduced legislation to punish people
involved in “bottom of the harbour”
schemes, he did so because such schemes
were “evil”. The community accepted,
without much concern, except that
expressed by the lawyers, the operation
of retrospective criminal legislation.
Now legal professional privilege is
under attack.
LEGAL ADVICE AND
CONFIDENTIALITY
Many forms of “privilege” are rules of evidence, for example, public interest immunity, where the courts are concerned to
balance competing public interests. In the
case of claims to public interest immunity,
it is not uncommon for courts to look at
the documents to determine whether the
claim to immunity has been made out. It is
also not uncommon for courts to decline
to look at the documents for the purpose
of deciding this question, because to do so
could place the judge in a position where,
if the claim to immunity were upheld, he
should disqualify himself.
Legal professional privilege is not a
rule of evidence. It is a substantive rule
of law. The Federal Government has now
introduced legislation giving to Royal
Commissioners the power to determine,
by looking at documents for which legal
professional privilege is claimed, whether
that claim should be upheld.
Royal Commissioners are not judges.
They are appointed ad hoc and, no matter
what their qualifications, they do not have
the tenure of judges. More importantly,
they are themselves the tribunal which
will determine the facts.
The legislation will give to an ad hoc tribunal power to read documents which may
not be admissible in evidence before it. If a
Commissioner reads such a document and
finds that it is the subject of legal professional privilege, will he then disqualify
himself? Will the Royal Commission start
again from scratch under the auspices of
another Royal Commissioner?
What happens if the Royal Commissioner makes a mistake, finds that the
document is admissible because it is not
privileged, relies on the document, publishes a report which is damning of the
individual and a court subsequently finds
that the document is privileged?
5
The legislation that is proposed undermines a fundamental principle, not just a
right of the individual, but a principle of
the administration of justice.
It is in the interests of the community,
as well as of the individual, that litigants,
whether engaged in civil or criminal litigation be able to confide in their lawyers. It
is equally important that, subject to the
exception in relation to fraud or participation in a criminal purpose, individuals be
entitled to obtain honest and informed
advice from their lawyers.
Certainly, if the federal legislation goes
through, any person involved in an activity
which may become the subject of a Royal
Commission would be advised to think
twice before communicating frankly with
his or her lawyer.
Once again, the target is well chosen
— or perhaps the evil is seen as justifying in the remedy. AWB is in disgrace. Our
wheat export trade has been damaged.
Since AWB is “evil”, to give the Royal
Commissioner such a power in this case
is clearly “justified” in the interests of the
community was a whole.
INDIVIDUAL RIGHTS OR COMMUNITY
INTEREST?
The trouble is that, if we think only of the
“interests of the community as a whole”,
then the rights of the individual do not
matter.
Once we focus on the interests of the
community, and ignore the interests of
the individual, we necessarily move into
an amoral world in which any action which
is seen to benefit the “community as a
whole” (an undefined term which probably, at least until recently in this country,
meant the Anglo-Celts) is justified.
That some people suffer is unfortunate.
It is to use a term borrowed from the Iraq
war “collateral damage”.
Most of us know that we have done
nothing wrong; and, therefore, we have
nothing to fear. What happens if someone
makes a “mistake”?
The extent to which the rule of law
is under threat is aptly illustrated by the
Law Week Oration by Lex Lasry, the text
of which is set out in this issue. We commend it to our readers.
OUTSIDE THE RULE OF LAW
Many years ago, one of the editors inadvisedly said to his blue-rinse Texan hostess
on Thanksgiving day: “I don’t believe in
killing people.” Her response was clear,
forthright and very positive. As she (literally) thumped the table she said: “I do. I
believe in killing commies!” Our papers
and our television sets have recently
6
noted with joy, or at least satisfaction,
that a leading Al Queda operative has
been killed as a result of a US air strike.
A number of other people perished with
him.
It may be necessary in war, or in warlike situations to kill without warning, to
kill without trial and even to kill without
making any attempt to capture. For those
who believe in the Christian philosophy,
however, the death of another human
being should not be a matter for happiness, or even for satisfaction. September
the 11th represents a turning point in
history. In many ways, however, it differs
only in scale from every air strike which is
made in retaliation.
Those of us who do not believe in
capital punishment — and that is the
official view of every government in this
country — find it difficult to applaud the
execution, whether with or without trial of
even the most evil human being. A killing
in retaliation or revenge is not thereby
justified, any more than the fire bombing
of Dresden was justified by the deaths of
Londoners caught in the blitz.
The killing of a terrorist who is actively
engaged in bombing, murder or assassination may be necessary. It is not a cause for
rejoicing or even for smug self-satisfaction.
VALE JUNIOR SILK
Amongst the social functions which have
occurred since the last issue is the first
Bar Dinner under the “new format”,
designed to be user friendly, non-controversial and contrary to a tradition which
goes back to at least 1919 when J.B. Tate
was “Mr Junior”. Few of us can remember
before that.
Until 1971 the person given the task of
being the “keynote speaker”, and of denigrating the distinguished guests in a polite
manner, was the person who had most
recently signed the Bar Roll. In 1972, it
was decided that the job was too hard to
impose on the youth of that time and the
role was transferred to the “Junior Silk”.
There were probably good reasons for this
change and certainly it resulted in more
polished performances.
Jeff Sher was the first “guest speaker”
to replace Junior Silk. His speech appears
in these pages. It is more serious in content than those to which we have become
accustomed. This is probably “a good
thing”. Certainly it provides more food for
serious thought than have the speeches of
past years.
It is, however, a pity to see a tradition
abandoned because on one occasion,
rightly or wrongly, umbrage was taken at
the content of a Junior Silks’ speech.
CHANGES IN THE COURT OF APPEAL
The face of the Court of Appeal has
changed with the departure of Charles
JA since the last Bar News, the elevation
of Redlich J from the Trial Division to the
Court of Appeal and the appointment of
Professor Neave.
The last appointment has been the subject of some debate. It has been criticised
in one letter to the Australian Financial
Review under the title “Judge Them on
Experience”.
There can be no doubt that those who
go to the Bench, whether it be to the Trial
Division or the Court of Appeal, with
a wealth of trial and appellate experience have an easier row to hoe than any
appointee from academe. Judges need
wisdom, intelligence, a knowledge of the
law and a compassionate understanding
of humanity. Intelligence and a knowledge of the law are characteristics (or
should be characteristics) of all those
who reach eminence in any branch of the
law. Neither wisdom nor compassionate
understanding are necessary products of
years in practice.
There is no question that Justice Neave
possesses intelligence of a very high order
and a very broad and detailed knowledge
of the law. There is no evidence that her
years as an academic have prevented her
from developing wisdom or compassionate understanding. The evidence is to the
contrary.
We wish her Honour well in her new
role.
WHERE HAS ALL THE WORK GONE?
Many members of the Bar, particularly
those who work in the personal injury
area have noted a drastic decline in their
workload. The following extract from the
Herald Sun in late May 2006 may explain
it:
Reforms outlawing many personal injury
claims in Victoria have led to a huge drop
in the number of court cases. Figures from
the County Court show public liability law
suits dropped from 1,734 in the year before
the reforms to 84 last year. The drop in all
causes of action for personal injuries was
from 5418 to 801.
Since this appears to be a drop of 83
per cent it means that those who work in
the personal injury area now have available to them 17 per cent of the work which
was available a year earlier.
The Editors
Chairman’s Cupboard
Busy Winter for the Bar
legal practitioners for state and criminal
law legal aid services.
On 21 June 2006, the VLA approved
fee increases in legal aid criminal matters commencing from 1 July 2006.
These details of the increases have been
circulated to the Bar. In summary, the
increase in the fees payable for pleas in
the County Court and Supreme Court, trials in the County Court and the Supreme
Court and appeals represents an increase
by 23.7 per cent on the current fees in an
overall sense but not in relation to all brief
fees payable to counsel. The Board also
approved an indexation increase of 2.5
per cent to all summary crime, committal
and Children’s Court fees.
APPOINTMENTS AND FAREWELLS
R
ECENTLY, there have been ceremonial welcomes for Justice Tony
Cavanough to the Supreme Court,
Judge Paul Grant to the County Court and
to the Presidency of the Children’s Court
and for Justice Christopher Jessup to the
Federal Court. Justice Robert Redlich has
been elevated to the Court of Appeal.
In addition, the appointments of
Richard Tracey RFD QC and John
Middleton QC to the Federal Court have
been announced and their welcomes will
be in held in the coming weeks.
At the Federal Magistrates’ Court,
Heather Riley and Philip Burchardt
have taken their places on the Federal
Magistrates’ Court.
There have been ceremonial farewells
for Justice Stephen Charles from the
Court of Appeal, Judge Jennifer Coate
from the Presidency of the Children’s
Court and Judicial Registrar Jonathan
Ramsden from the Family Court.
Sadly, on 10 June 2006, Judge William
Morgan-Payler died after a long illness.
The address of Chief Judge Rozenes honouring Judge Morgan-Payler appears elsewhere in this edition of the Bar News.
QUEEN’S BIRTHDAY HONOURS
On behalf of the Bar, I wish to congratulate the members of our Bar who
were honoured in the Queen’s Birthday
Honours — the Honourable Shane Stone
AC QC, the Honourable William Ormiston
AO, Richard Searby AO QC and Justice
Sally Brown AM.
RETIREMENTS FROM THE BAR
In the past, there has been no practice
by the Bar News of recording significant
retirements from the Bar. In the preceding 12 months or so, three silks have
retired who deserve mention — Hartog
Berkeley QC, Brian Shaw QC and Michael
Crennan S.C. — all of whom retired
from full time practice within that time.
Tributes to Hartog Berkeley and Brian
Shaw appear elsewhere in this edition of
the Bar News.
After more than 23 years at the Bar,
Michael Crennan retired on 30 June
2006. Michael signed the Bar Roll on
18 November 1982 and he took silk on
28 November 2000. He was a member
of the Bar Council and Chairman of
the Counsel Committee for three years
(2002–2005). He was also a member of
other committees. In addition to his Bar
Council commitments, Michael made
substantial contributions to many submissions made by the Bar, in particular,
submissions arising from inquiries by the
Victorian Law Reform Commission, the
Australian Senate and the Trade Practices
Commission in the 1990s, and more
recently, to the submissions on advocates’
immunity. Michael also represented the
Bar at the many meetings on the drafting
of the Legal Profession Act 2004.
On behalf of the Bar, I wish Michael a
long and satisfying retirement and thank
him for the work that he has done for the
Bar over the years.
LEGAL AID
In November 2005, members were
informed of the decision of the Board
of Victoria Legal Aid (“VLA”) to adopt a
protocol for the indexation of fees paid to
ADVOCATES IMMUNITY
Recently, a sub-committee comprising Mark Derham QC, Michael Crennan
S.C., Charles Shaw and Mathew Groves
prepared the Bar’s submissions on the
three “modification options” proposed by
the Standing Committee of AttorneysGeneral in respect of advocates’ immunity from civil suit. These submissions
were approved by the Bar Council and
subsequently endorsed by the Australian
Bar Association and the Law Council of
Australia. On behalf of the Bar, I thank
Mark, Michael, Charles and Mathew for
the substantial contribution made by them
in drafting and settling the submissions.
PROFESSIONAL STANDARDS SCHEME
The Bar has received applications from
around 300 members to join the proposed
Victorian Bar Professional Standards
Scheme. The Bar Council, with the assistance of a sub-committee is preparing an
application for approval of the scheme
with a view to lodging the application with
the Professional Standards Council in the
near future.
ANTI-DISCRIMINATION POLICY
FOR THE BAR
On 25 May 2006, the Bar Council
approved an Anti Discrimination Policy
for the Victorian Bar. The policy affirms
the Bar’s opposition to all forms of dis7
crimination, harassment and vilification in
the provision of legal services by its members, the seeking of legal services from its
members, the manner in which members
conduct themselves in relation to each
other and in the employment of staff.
HUMAN RIGHTS LEGAL RESOURCE
CENTRE
On 29 April 2006, Michael Shand QC and
I were the guests at a dinner held by the
Human Rights Legal Resource Centre
(“HRLRC”) to celebrate the establishment of the HRLRC by the Public Interest
Law Clearing House (Vic) (“PILCH”) and
Liberty Victoria in January 2006. The
HRLRC is “the first centre to pilot an innovative service delivery model to promote
human rights … [a model that] draws
together and coordinates the capacity and
resources of pro bono lawyers and legal
professional associations, the human rights
law expertise of university law schools,
and the networks, grass root connections and community development focus
of community legal centres and human
rights organisations”. The speakers at the
dinner included Professor Paul Hunt, the
United Nations Special Rapporteur on the
Right to Health, and the Reverend Tim
Costello AO, the Chief Executive Officer
of World Vision Australia.
VICTORIAN BAR LEGAL ASSISTANCE
SCHEME
On 30 March 2006, the Chairman of
Victorian Bar Legal Assistance Scheme
(“VBLAS”), Mr Ross Macaw QC, hosted
a reception at the Essoign to thank members of the Bar who have undertaken pro
bono work during the past year through
VBLAS, the PILCH scheme, the Federal
Court Order 80 Scheme, the Federal
Magistrates Court Part 12 Scheme and
other pro bono work not part of any formal arrangement. The Honourable Justice
Young of the Federal Court spoke at the
reception about the origins and development of the Order 80 scheme in that Court
and the role of VBLAS in that scheme. The
text of that address appears elsewhere in
this edition.
JOINT SUBMISSION BY THE BAR
AND PILCH
The Bar and PILCH produced a joint
submission to the Senate Legal and
Constitutional Legislation Committee on
the Migration Amendment (Designated
8
Unauthorised Arrivals) Bill 2006. A
sub-committee comprising Ron Merkel
QC and Jack Fajgenbaum QC worked
on the submission on behalf of the Bar.
Ron Merkel also spoke to the submission
on behalf of the Bar and PILCH at the
Committee’s public hearing in Canberra.
On behalf of the Bar, I thank Ron Merkel
and Jack Fajgenbaum for their substantial
contribution to the joint submission.
DINNER FOR JUSTICE CRENNAN
On 27 April 2006, the Bar hosted a dinner in celebration of the appointment of
Justice Crennan, a former Chairman of
this Bar, to the High Court. On the night
the Essoign was packed to capacity. The
dinner was attended by Justice Hayne and
Judges of the Supreme Court, Federal
Court and Family Court, retired judges,
members of the Federal Magistrates’
Court, the Victorian Magistrates Court,
retired barristers and members of the Bar.
Frank Costigan QC gave a masterly and
warm tribute to Justice Crennan which is
included in this edition of the Bar News.
Justice Crennan responded to the tribute
in a substantial and humorous manner
entertaining the audience with anecdotes
about present and former members of the
Bar.
MR MORDECAI MAHLANGU
Mr Mordecai Mahlangu, a senior partner of one of the major firms in Harare,
Zimbabwe, recently visited Melbourne.
Mr Mahlangu is a noted human rights
lawyer. He represented the former Chief
Justice of Zimbabwe, Anthony Gubbay,
who was driven from office by the Mugabe
Government. Mr Mahlangu was able to
attend an afternoon tea in the Chairman’s
room where members of the Bar Council,
the Human Rights Committee and the
Bar were able to discuss the current
political situation in Zimbabwe with him.
Mr Mahlangu urged the Bar to keep in
contact with the members of the Bar in
Zimbabwe.
SIR ALBERT PALMER, CHIEF JUSTICE
OF THE SOLOMON ISLANDS
On 9 June 2006, I was delighted to host an
afternoon tea for the Chief Justice of the
Solomon Islands with other members of
the Bar and Barbara Walsh, the Manager
of Legal Education for the Bar. Barbara
has assisted in the past in the numerous
Advocacy Skills Training Courses con-
ducted by the small group of volunteers
from the Bar in the Solomon Islands. Also
attending the afternoon tea were the
President of the Court of Appeal, Justice
Maxwell, and Appeal Justice Geoffrey
Eames.
VISIT TO MELBOURNE BY CANADIAN
FEDERAL COURT JUSTICES
Michael Shand QC and I hosted an informal
morning tea for three Canadian justices of
the Federal Court of Canada — Justice
Eleanor Dawson, Justice Carolyn LaydenStevenson and Justice Anne MacTavish
— all of whom were visiting Melbourne
with the Chief Justice of Canada, the
Right Honourable Beverley McLachlin
PC. In April 2006, Chief Justice McLachlin
delivered the 14th Australian Institute of
Judicial Administration Oration entitled
“The Twenty-First Century Court: Old
Challenges and New in the Banco Court of
the Supreme Court of Victoria”.
MY THANKS
The Bar Council year is coming to an end
in September 2006. On behalf of the Bar, I
thank all members of the Bar Council and
other members of the Bar for their contributions to the ongoing work of the Bar.
In particular, I wish to thank the Senior
Vice Chairman, Michael Shand QC, for
his commitment to the work of the Bar
Council and his unswerving ability to “get
the task done” at all times. The voluntary
work undertaken by the members of the
Bar, particularly the work done by Michael
Shand and the heads of the committees of
the Bar, carry the workload of the Bar.
The Honorary Secretary of the Bar,
Kate Anderson, will be retiring from that
position in September 2006. Kate has
been the Honorary Secretary since 2003.
Together with the Assistant Honorary
Secretary, Penny Neskovcin, Kate undertakes a thankless and time consuming task
with efficiency, diligence and patience.
I am indebted to her for the work that
she has done for me and the Bar during
the year. On behalf of the Bar, I thank
her for her substantial and significant
contribution to the workings of the Bar.
I also thank Penny for her contribution
to the work of the Bar and I look forward
to her continuing contribution to the Bar
Council.
Kate McMillan S.C.
Chairman
Attorney-General’s Column
“We Must Inspire a
Confidence in all Victorians
for a Justice System and
Principles That Have
Meaning”
F
EW issues so divide a community
or test a responsible government
as finding the right balance in the
sentencing and prevention of criminal
behaviour. This challenge is, of course, a
theme running through the law since time
immemorial — the authority of the state,
our community’s safety, and the population’s confidence in the rule of law all
depending on an effective and measured
response to crime.
Some governments rise to this challenge more thoughtfully than others, of
course — the “lock ’em up and throw
away the key” approach seen by some as
the easy way out. This is not the view of
the Bracks Government and, in a unique
and unprecedentedly complex period in
our history — one in which the world has
grown smaller and seemingly much more
threatening — we know that we must hold
fast to values such as judicial independence, to the presumption of innocence,
and to the law’s obligation to exercise
compassion, as well as condemnation.
We must also, however, have the sense
to acknowledge where the system has
failed — where these failures are eroding
the community’s confidence in the courts
and, ultimately, in the justice for which
we all feel so strongly. Let’s be clear — no
matter how much we tackle the causes of
crime, no matter how much we divert people away from recidivism, or how much we
improve the law’s response to victims of
crime, our work can be undermined by
one seemingly lenient sentence.
The ground that we cover — hard
fought and hard won — in family violence reform; in defences to homicide
reform; even in sexual assault reform and
Indigenous justice, are too often eclipsed
by a public perception of “crims” walking
free.
So how do we respond to this perception? Do we go down the path, then, as the
Victorian Opposition is no doubt gearing
up to do, of mandatory or “minimum” sentencing? The short answer is no, and it is
crucial that those who oppose this fettering of judicial discretion, which will lead
to much fewer guilty pleas and the further
traumatising of victims, speak out against
this simplistic approach.
What we can do, however, is have
the maturity to acknowledge the flaws:
to recognise that, within an otherwise
solid foundation, a crack has developed
between the law’s application and the
public’s perception of the sentencing
process. This is why we established the
Sentencing Advisory Council and this is
why we asked it to review the suspended
sentences regime.
As you know, last month the Council
presented its final report, a report which
recommended the phasing-out of suspended sentences by 2009, their replacement with orders that demand greater
accountability and the immediate restriction of the use of suspended sentences for
serious violent and sexual offences.
The Government intends to act immediately on the latter recommendation to
restrict the use of suspended sentences
for serious offences, as well as requiring judges and magistrates to consider a
number of criteria when applying a suspended sentence for any other offence.
Upon receipt of the second part of the
Council’s report, we will then consider the
broader recommendations to phase out
and replace suspended sentences with a
new range of orders that mean justice is
more clearly seen to be done.
The simple fact is, the Victorian public
regard suspended sentences, particularly
for serious offences, as “get out of jail free”
cards. Victims of violent offences no doubt
find it bewildering, to say the least, to see
perpetrators convicted, admonished but,
for all intents and purposes, free to walk
out into the sunshine and resume their
lives seemingly unaffected.
As the Sentencing Advisory Council
says in its Report:
Many in the broader community have difficulty reconciling the legal classification of
9
Letter to the Editor
a wholly suspended sentence as a custodial
sentence that is more severe than other
conditional orders, when its practical consequence is that the offender is permitted
to remain in the community under the sole
restriction that he or she refrain from committing further offences during the period
of the order.
I don’t pretend I haven’t struggled
with this question. Ultimately, however, I
will not see public confidence in the law
— and in the quiet revolution in which we
are engaged — eroded. No doubt some
readers will strenuously disagree with me
and find occasion to tell me so. This is as
it should be.
More broadly, we must
explain to Victorians that
the right to the law’s
protection, compassion
and impartial adjudication;
the right to advice and
representation; belong as
much to their neighbours,
family and friends as they
do to the tabloid’s latest
quarry.
I urge you, nevertheless, to remember
that the strength of our convictions for a
fair and independent justice system are
diminished if they are not shared by every
Victorian. This is why we must inspire a
confidence in all Victorians for a justice
system and principles that have meaning. In doing so, we must explain that
this system evolves and is not static, but
that its foundations — the presumption of
innocence, judicial independence — must
endure.
More broadly, we must explain to
Victorians that the right to the law’s
protection, compassion and impartial
adjudication; the right to advice and
representation; belong as much to their
neighbours, family and friends as they
do to the tabloid’s latest quarry. If we can
make this message resonate and address
the flaws in the system as we find them,
then governments will be better equipped
to rise to that perpetual challenge: of safeguarding individual liberties; of meeting
forcefully the invidious effects of crime; of
finding the right and responsible balance.
Rob Hulls MP
Attorney-General
10
O Tempora, O Mores!
Dear Editors
I
sometimes find myself, like a frightened
forest dweller, watching as one by one
all of the mighty trees of tradition which
have sheltered me and my forebears
over the years are cut down by would-be
improvers. At this year’s Bar Dinner I saw
one more such leafy glade deforested and
sent off for pulping.
As a barrister I believe in the rule of law
and am fiercely proud of our democratic
traditions. Whilst the self-seeking demagogues who pollute the benches on both
sides of Parliament in Spring Street and
Canberra may be free with our democracy, I for one thought that the Victorian
Bar would never do the same in order to
pander to the whims of would-be improvers. To my disappointment, there was no
Loyal Toast at this year’s Bar Dinner. This
was a small thing I know, but sometimes
small things are important. Perhaps my
memory is mistaken, but as I recall it the
Republican Vote was roundly defeated
at the referendum, now only a few years
ago, and Queen Elizabeth II remains our
head of state. We all know that the office
of QC was rudely abolished by our State
Government, showing its usual scant
regard for the dictates of voters. But
how sad I was to see the harmless but
honourable tradition of the Bar toasting
our sovereign cast into the rubbish heap
by the Victorian Bar Council without any
cause, let alone any democratic mandate,
to do so.
I will not dwell at any length on the
guest speaker’s speech. Like most war
stories of an accomplished advocate it had
its moments, but I thought it a very poor
substitute for the Junior Silk speech. The
tradition of a speech being delivered by
the most Junior Silk (and before that the
most Junior member of Counsel) praising
our Honoured Guests at the Bar Dinner,
albeit praise mingled with the odd gentle
jibe, was a splendid tradition. If sometimes
the humour was a tad coarse, no offence
was ever intended and none sensibly
could be taken. How all too easy it is for
us as barristers, let alone those of us who
have become Judges, to puff ourselves up
with self-importance, and how helpful it is
to be reminded on occasion that we are
all fallible, and often funny, human beings.
But no, no longer can the Victorian Bar
give or take a joke. We are now all too
lofty and our personalities all too eggshell.
Let us hereafter confine ourselves to safe
popularist topics when speeches are made
lest there be some faint fear of giving
offence.
No doubt the Bar Council will say, as
was in fact said that night, that the large
numbers of attendees at the Bar Dinner,
some 400 with a long waiting list, was
thanks to the new format. But that is
merely bald speculation which would
never be admitted in any court which I
know. None of the persons I spoke to at
the Dinner even hinted at that being the
reason for their attendance, and indeed
several indicated to me that they were
there in spite of the changed format rather
than because of it. And so as another year
slips by, the would-be improvers leave
an ever-growing swathe of devastation
behind them and I sometimes wonder if
soon there will be no traditions left. This
will no doubt make the would-be improvers happy in their bland, sterile conformist
world to come.
Yours faithfully
Marcus Tullius Cicero
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Ethics Committee Bulletins
Report of Disciplinary
Proceedings
U
NDER section 166 of the Legal
Practice Act 1996 (“the old Act”),
the Victorian Bar Incorporated
(“the Bar”), as a Recognised Professional
Association, is required to publish the following information in relation to an order
made by the Legal Profession Tribunal
that a legal practitioner who is a regulated practitioner of the Bar was guilty
of misconduct. Schedule 2, clause 8.3(2)
of the Legal Profession Act 2004 (“the
new Act”) provides for the Victorian Civil
and Administrative Tribunal (“VCAT”)
to hear and determine a matter that was
pending in the Legal Profession Tribunal
immediately before the commencement
day (of the new Act) as if (a) the matter
were a proceeding commenced at VCAT;
and (b) the old Act continued to apply in
respect of the matter (both substantively
and procedurally).
On 6 March 2006 the Civil Division
of VCAT in its Legal Practice List made
the following orders against Gregory S.
Lucas.
1. Name of Practitioner: Gregory S. Lucas
(“the practitioner”).
2. Tribunal Findings and the nature of the
Offence:
The practitioner pleaded guilty of one
charge, namely that:
(a) He was guilty of misconduct within
the meaning of s.137(a)(i) of the
old Act in that he wilfully or recklessly contravened or failed to
comply with s.314 of the old Act
by engaging in legal practice without holding a practising certificate
for the period 1 July 2005 to 27
October 2005.
3. The orders of VCAT were as follows:
(a) The charge of misconduct by the
practitioner found proven.
(b) The practitioner is fined $5,000.00.
(c) The practitioner is ordered to pay
the Victorian Bar’s costs of the
proceedings, fixed at $4,400.00.
(d) A stay of three months is granted
in relation to payment of fine and
costs.
4. No notice of appeal against the orders
has been lodged. The time for service
of such notice under the old Act has
expired.
Barristers Acting as
Migration Agents
T
HE Migration Act 1958 restricts
the giving of “immigration assistance” and the making of “immigration representations”. The Act permits
individuals to be registered as migration
agents with the Registrar of Migration
Agents. A person who is not a registered
migration agent must not give immigration assistance, and must not ask for or
receive any fee or other reward for making immigration representations.
The Act recognises the position of
persons who are qualified as lawyers and
admitted to practice as legal practitioners.
The provisions of the Act do not “prohibit
a lawyer from giving immigration legal
assistance” including legal representation
in certain situations “before a court”.
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Some barristers are registered as
migration agents. As such they have the
right to appear before migration tribunals
where the right to appear is confined to
migration agents. This raises the question
of whether a barrister (registered as a
migration agent) can also do other work
traditionally carried out by a migration
agent, such as the giving of “immigration
assistance”?
The Ethics Committee considers
that where such other work involves filling in forms, or corresponding with the
Immigration Department, and attending
to other administrative or documentary
requirements, that is work ordinarily
done by migration agents or solicitors
who are migration agents and is not work
that should be done by a barrister even if
that barrister is registered as a migration
agent.
Rule 118 states:
A barrister shall not be engaged in any
vocation incompatible either with his or her
position as, or with the proper discharge of
his or her duties as, a barrister. In engaging
in another vocation, the barrister should
have regard to the following considerations:
(a) another vocation must not be such
that a barrister’s association with it
may adversely affect the reputation of
the Bar or the barrister’s own reputation;
(b) another vocation must not prejudice a
barrister’s ability to attend properly to
the interests of his or her clients.
The Committee takes the view that the
“vocation” of a migration agent does not
create an incompatibility within Rule 118.
The Committee proceeds on the assumption that registration as a migration agent
is necessary if a barrister seeks to appear
as a barrister in certain migration tribunals. In that situation, registration may be
seen practically as a qualification needed
in order to appear or advise in connection
with an application.
The ethical difficulty arises in a different way. It arises where a barrister wishes
to do the work of a migration agent, not
for the purposes of immigration legal
assistance, but for immigration (nonlegal) assistance.
The Committee considers that Rule 120
applies in these situations. It provides:
A barrister shall not act as, or perform the
work of, a solicitor, save as permitted by
these Rules.
Rule 120 prohibits a barrister from
12
performing the work of a solicitor and
applies to a barrister whether acting in the
course of his/her practice as a barrister or
otherwise. It reflects the undertaking by
each member of counsel given to the Bar
Council upon signing the Bar Roll.
If a barrister who is a migration agent is
required, for example, to undertake work
that may be characterised as solicitors’
work (such as preparing application forms
for a visa application — see the definition
of “immigration assistance” in s.276 of
the Act) the Committee’s view is that the
work will be prohibited by Rule 120. That
view is strengthened when regard is had
to the possible problems that can arise
when barristers perform such work, for
example, dealing with trust moneys.
Further, Rule 128 states:
A barrister who is asked by any person to
do work or engage in conduct which is not
barristers’ work, or which appears likely to
require work to be done which is not barristers’ work, must promptly inform that
person:
(a) of the effect of Rule 120; and
(b) that, if it be the case, solicitors are
capable of providing those services to
that person.
The Committee’s view is that, in any
particular case, a barrister who is acting
as a migration agent must comply with
this rule whenever it appears likely that
the work will involve the work of a solicitor.
Bulletin 1 of 2006
2 May 2006
Welcomes
Court of Appeal
Justice Robert Redlich
is also a man who lacks a large ego or a
sense of self-importance. He does, however, have a fierce commitment to justice
and the rule of law. There are many who
regret that he will no longer be available
as a trial judge.
No doubt now he will be able to burn
the midnight oil reading Appeal Books
rather than transcript. The intellectual
rigour which he has shown as a trial judge
(and which he showed as counsel) will
have a new outlet.
We welcome his Honour’s appointment.
Court of Appeal
Justice Marcia Neave
I
n welcoming him to the Supreme Court
on 11 November 2002, Jack Rush QC
said of Justice Robert Redlich:
Your Honour’s thoroughness and attention
to detail in the preparation and presentation of a case have been likened to that of
a Swiss master craftsman who takes a clock
apart completely so as to know every tiny
piece and then puts it all together again.
Those who have appeared before his
Honour in the 31⁄2 years since Jack Rush
spoke those words are unanimous in the
view that his Honour has taken that same
thoroughness and attention to detail with
him to the Bench.
Those who appeared before him in
the case of R v Lam & Ors speak of his
Honour’s complete dedication to the job
in hand and his capacity by reason of
that work ethic combined with intellect
and courtesy to repeatedly give prompt
and unchallengeable rulings (some 31 of
them) on difficult and complex issues.
The editors are aware of at least one
counsel in that case — losing counsel –
who consistently referred to his Honour’s
mastery of the detail of the case and to the
huge workload which his Honour imposed
upon himself during the conduct of that
trial.
His Honour has shown himself not only
to be a first class lawyer, with a first class
mind but also a first class trial judge. He
J
USTICE Marcia Neave, recently
appointed to the Court of Appeal
has had, on any account, a stellar
legal career. She attended Melbourne
University Law School from which she
emerged with the Supreme Court prize. In
so doing, she collected more exhibitions
than any other student since Sir Zelman
Cowen. Upon discerning this, Sir Zelman,
who was Dean of the Law School at the
time, offered her a tutorship immediately
— and without interview. She proceeded
to write the first Australian casebook
on the law of property with Ronald
Sackville, now a Justice of the Federal
Court. It was acknowledged widely as a
huge and brilliant work — even if some
like me, who were not much interested
in property law, rather suffered through
it.
Justice Neave left Melbourne
University to become Dean of Law at the
University of Adelaide. She was one of the
first three women in Australia to be
appointed to a Chair in Law. After five
years there she returned to a personal
Chair in the Law Faculty at Monash
University. She has been appointed a
Fellow of the Hauser Global Law Faculty
at New York University Law School, one of
only two Australian academics to have
been so recognized. She is also a Fellow of
the Academy of Social Sciences in
Australia, a distinction she shares with a
number of other judges including Justice
Paul Finn of the Federal Court, Justice
Michael Kirby of the High Court and
retired Justices Sir William Deane, Sir
Anthony Mason and Sir Ninian Stephen.
In parallel with her distinguished
academic career, Justice Neave has
demonstrated a continuing, practical
commitment to law reform. She was for a
time Director of Research with the NSW
Law Reform Commission. She headed
the Victorian Government’s inquiry into
prostitution in 1985, an appointment
greeted in the Herald-Sun under the
headline “Mother of Two to head Brothel
Inquiry.” From 1986–1992, she was a parttime Commissioner of the old Victorian
Law Reform Commission. She headed
13
the
Commonwealth
Administrative
Review Council for five years until 2000.
She was appointed Foundation Chair of
the reconstituted Victorian Law Reform
Commission in 2000, a position she
occupied until her nomination to the
Bench.
She was made an Officer of the Order
of Australia in 1999. Her citation read:
“For service to the law, particularly in
relation to law reform in the area of social
justice as it relates to issues affecting
women, and to legal education.” In 2001
she received a Centenary Medal for her
work with the Administrative Review
Council.
Despite these formidable achievements, Justice Neave’s appointment
has not been without its critics — and
in particular from one columnist in
the Herald-Sun. Referring to this, the
President of the Law Institute, Ms Cathy
Gale, in her welcoming speech said that
she had been disheartened by the criticism,
particularly as it appeared founded on the
view that in the appointment of a judge,
attitude counted more than experience.
She responded “that diversity within an
organization is a strength, not a weakness,
and I believe that (Justice Neave’s)
contribution to the Bench will indeed be
a great strength”.
Justice Neave’s contribution, while
based on her legal brilliance, is likely to be
made on even broader foundations. She
brings to her position many personal
qualities and an experience of life that
qualify her splendidly for judicial office.
She is a legal polymath. She possesses an
almost unique capacity to master, quickly
and confidently, very different areas of
legal speciality. This has been nowhere
better illustrated than in her recent tenure
as Law Reform Commissioner. In that role
she has had to conduct inquiries inter alia
into the law relating to homicide,
workplace privacy, tenancy, sex offences,
bail and intellectual disability. It is a
measure of her grasp (and that of her
research team) that the Commission’s
recommendations in every one of these
areas have been implemented in legislation
or are included in Bills which are before
the Parliament.
Her Honour has communication skills
of the highest order. It is not possible
to achieve the outcomes just described
unless one is capable of speaking
clearly, directly, openly and honestly
to the widest diversity of interested
parties, whether they be professional
organizations, community groups, people
suffering disadvantage, members of staff,
14
academics, policy advisers, politicians and
many others.
This is accompanied by a rare measure
of open-mindedness. Despite the attempt
of her journalistic critic to assign her a
particular legal or judicial orientation,
Justice Neave is well known for her
willingness and capacity to approach
new problems with intellectual rigour, a
commitment to arriving at conclusions
based on the interrogation of evidence,
self-awareness, and independence of
mind. We all have biases. But it is her
Honour’s ability to see and acknowledge
her own, as a precondition to engaging in
informed and impartial decision-making,
that marks her out.
Finally, Justice Neave brings to her
new role a thoughtfully founded and
highly developed ethical sense. It was
noted several times in the speeches
welcoming her appointment that she had
been, throughout her career, committed
not just to principled decision-making
but also to the achievement of justice for
people less privileged than herself. This is
complemented in her personal life by a
commitment to values such as openness,
trust, integrity, reciprosity, and respect.
It is these qualities, as much as any other
in the purely legal sphere, which qualify
her for her new appointment and ensure
that she will make a most distinguished
judicial contribution.
Supreme Court
Honourable Justice Anthony L.
Cavanough
O
N 16 May 2006 the Banco Court
was packed for the welcome to
Justice Anthony Lewis Cavanough
on the occasion of his appointment to the
Supreme Court of Victoria. The Bench
was also graced by the presence of Chief
Justice Marilyn Warren AC and Justice
of Appeal Peter Buchanan, the most
senior member of that Court present in
Melbourne. This innovation in the conduct of Supreme Court welcomes is to be
applauded.
The formal milestones of Justice
Cavanough’s career are impressive
enough. After education at Stella Maris
Primary School and St Bede’s College
Mentone, he graduated from Monash
University Bachelor of Economics and
Bachelor of Laws with Honours. With his
now colleague Justice Kevin Bell he was
equal runner-up for the Supreme Court
Prize. He served articles with Mr Matt
Walsh of Mallesons. After admission to
practice in February 1979 he became
Associate to Sir Gerard Brennan, then a
Judge of the Federal Court and President
of the Administrative Appeals Tribunal.
He signed the Bar Roll on 19 June 1980 at
a celebratory dinner at which Sir Alistair
Adam addressed the new readers, the
second intake of the Bar Readers’ Course.
He read with Peter Heerey at Latham
Chambers and after a successful practice
as a junior, during which time he had six
readers, John Buxton, Denny Meadows,
Samantha Burchell, Peter Morrissey,
Katherine Rees and Peter Gray, he took
silk in 1996. He was a member of the
Bar Council and served on a number
of Council committees, including joint
committees with the Law Institute. For
three years he served as a sessional
Hearing Commissioner for the Federal
Human Rights and Equal Opportunity
Commission.
Behind the foregoing lies a career at
the Victorian Bar of a man whose intellectual capacity, integrity, commonsense
and diligence are matched by a warmth,
humour and courtesy which have made
him many life-long friends along the way.
His time with Sir Gerard Brennan introduced him to the field of administrative
law which was to become his great specialty. In the mid 1970s modern administrative law at the federal level in Australia
was launched with the establishment of
the Administrative Appeals Tribunal and
the introduction of the Administrative
Decisions (Judicial Review) Act, the
Freedom of Information Act and the
office of Ombudsman. It usually takes a
few years for major legislative changes to
work their way into the tribunal and court
system. So by the time his Honour joined
Sir Gerard, federal administrative law was
still in something of a Garden of Eden
period (it was much later that the serpent
intruded in the form of privative clauses,
the mysterious doctrine of jurisdictional
error and other complications).
While in Canberra his Honour shared
a house with Jack Hammond, another
Associate of Sir Gerard’s (and the one
who had pipped the two second placegetters for the Supreme Court Prize). His
Honour’s tastes in music were always of a
somewhat conservative and middle-brow
kind. One night the Cavanough/Hammond
establishment was done over. The thief
did a thorough job and removed everything that was not nailed down, including
Jack Hammond’s record collection. But
there was one exception. The discriminating burglar left untouched his Honour’s
Bing Crosby records.
In reading with Peter Heerey on
the 12th floor of Latham Chambers his
Honour joined a stable from which four
have gone on to judicial office; as well as
his Honour, they are Justice Sally Brown
(Family Court), Justice Susan Kenny
(Federal Court) and Justice Kevin Bell
(Supreme Court). Comparisons with Mr
Bart Cummings spring to mind.
Latham Chambers was one of the first
of the modern chambers to be established
by the Bar itself outside Owen Dixon
Chambers. In the chambers where his
Honour read, and stayed (after an initial
interlude at Equity Chambers, of which
more anon) for his remaining 26 years
at the Bar, were Don Ryan (now of the
Federal Court) Graeme Thompson,
Craig Porter and David O’Callaghan.
Others on the 12th floor included Ross
Sundberg (now of the Federal Court),
Robert Osborne (now of the Supreme
Court) Jeff Sher, Richard Stanley, Jack
Forrest, Tom Danos, John Emmerson,
Chris Jessup (now of the Federal Court)
and David Martin. It was a most congenial environment, as witness the fact that
most of those not beguiled by offers from
Attorneys-General remain there to this
day.
In Equity Chambers his Honour joined
Father Frank Brennan SJ (St Ignatius
Loyola, the founder of the Jesuit Order,
was keen for its members to have varied
experiences — whether the Victorian
Bar, with crash and bash cases in the
magistrates’ courts, was quite the sort of
thing he had in mind must remain a matter for speculation). Others were Colin
McDonald, now a silk in Darwin, Gerard
Maguire, Mick Dodson and Maureen
Smith. In those pre-IKEA days the long
deserted chambers were fitted out with
desks built by somebody’s father, 40-yearold curtains and other fittings consistent
with the earnest ambience of socially
aware chambers.
A famous chambers-warming party
included many Bench and Bar notables
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from the Celtic Club — Kevin Anderson,
Murray McInerney, Jim Gorman, Frank
Vincent, Brian Thomson and honorary
Celt, Len Ostrowski. Also present was a
young James Allsop from Sydney (now
of the Federal Court). A Protestant guest
(such was the tolerance and generosity of
the hosts that even these were included)
enquired as to the meaning of the freshly
painted “Frank Brennan SJ” on the door.
Quick as a flash James responded “Son of
a Judge, of course”.
The morning after there appeared
over the door of the suite a coat of arms
with the crossed keys of St Peter. This
was removed, but the name “Vatican
Chambers” stuck.
His Honour’s practice flourished, especially in the field of administrative law,
but also in other areas, including some
causes célèbres such as the Bank of
Melbourne case (led by Neil McPhee and
Joe Santamaria) and Giannarelli (led by
Peter Heerey). But so successful was he
on behalf of clients complaining of breach
of natural justice, or very unreasonable
decisions on a Wednesday (known in the
trade as Wednesbury unreasonableness)
that governments, and particularly the
Federal government, paid him the sincerest form of flattery by increasingly retaining him.
His Honour was a prodigious worker
and burner of much oil at midnight and
later. As a natural consequence, he was
not the earliest of risers. Once he took silk,
his juniors would wait anxiously for the 10
am call: “I’m just getting on the train, can
you hold the fort till I get there.”
But not all was work. His Honour
excelled at cricket and would turn out
for the annual Bar v Law Institute fixture.
His abiding passion, however, was, and
remains, the turf. His Honour’s late father,
Maurice Cavanough, was the author of the
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15
definitive history of the Melbourne Cup,
first published in 1960 and subsequently
updated in a further eight editions before
his death in 2001.
His Honour each year organises for
the Bar’s Melbourne Cup Calcutta a table
made up of past and present Lathamites
and others of similar ilk. His Honour is
in charge of all investment decisions,
which for a long time have been successful to an extent that would excite envy
amongst Macquarie Bank executives
(well, almost).
However, the inevitable happened in
2005 and the table became a loss leader.
But of course there were no recriminations, and all concentrated on recollection
of past glories, which must surely come
again.
Of all his Honour’s fortunate experiences in the law, none have proved of
greater value than his meeting his wife
Gabrielle, then a solicitor with Freehills.
They were introduced on the steps of the
Supreme Court by his old friend Michael
Fleming, fellow St Bede’s boy, Monash
Eco/Law grad, Brennan Associate, Heerey
Reader, and Lathamite.
His Honour and Gabrielle have two
daughters, the elder of whom is following
her parents into the law. At Law School
Amanda was given the exercise of writing a headnote. She showed a draft to his
Honour. As his many juniors will attest,
production of a draft document and a
red pen trigger obsessive compulsive
behavioural reactions in this otherwise
well-adjusted and mild-mannered man.
His Honour made many helpful suggestions for the improvement of the content,
style, structure, grammar and syntax of
the draft. Unfortunately Amanda’s lecturer did not greet the settled draft with
the admiration one must be sure would be
felt by any counsel or judge who read it.
A dismal mark was received. Demands on
his Honour’s time for academic assistance
by his daughter have much diminished.
The Bar is delighted with his Honour’s
appointment and is confident he will add
lustre to the Supreme Court of Victoria.
16
County Court
Judge Paul Grant
H
IS Honour Paul Douglas Grant was
welcomed to the County Court
Bench on 26 April 2006.
His Honour was born and raised in
Altona. There is a family connection with
the area stretching back a number of generations.
His Honour attended Altona High
School and assumed that his destiny lay
in teaching. Almost as an afterthought,
law was included as a preference and
Monash University obliged with an offer
to undertake arts and law degrees. His
Honour enjoyed his years at Monash,
including developing snooker skills, reading the great Russian authors, spending
many hours listening to music in the
John Medley Library and learning the
piano. These extra-curricular pursuits
were interspersed with some study before
graduating Bachelor of Arts in 1975 and
Bachelor of Laws in 1977.
A move to Geelong soon followed.
Articles were served at the firm of Fraser
Desmond & Hampson, before admission
to practice in early 1979, and subsequent
employment with Hodges Hall & Co, also
in Geelong. Exposure to Court appearance work persuaded his Honour to pursue the art of advocacy.
During this time, and in keeping with
a keen sense of social justice, time was
also spent as a volunteer and committee
member with the South Barwon Legal
Service. There was, as always, a full life
away from the law. There were many
fun-filled times attending card nights that
extended well into the following day, as
well as impromptu volleyball and three
or four-a-side football matches in what
was then known as Kardinia Park. Match
breaks were regularly taken at the nearby
Sawyers Arms.
A crowning moment in his Honour’s
many sporting achievements came in a
cricket match between Geelong lawyers
and the local police. His Honour played
a masterful opening stand that more
than offset the less than effective bowling
efforts of his team mates.
In about 1980 serious consideration
was given to a position outside the law.
Fortunately, his Honour thought the better of it, and instead, decided to try his
hand at the Bar. His Honour read with
the late Graeme Morrish QC, recognising
and learning from his mentor’s considerable skills as a lawyer and advocate. They
became good friends. The Bar Roll was
signed in June 1980 and it marked the
beginning of an enduring interest in the
criminal law. A busy criminal practice was
soon established.
His Honour’s legal career took another
turn in 1985 when he joined up with
friends Peter Gordon and Rob Stary
at Slater & Gordon, to set up a branch
office in Footscray. Together they built
up a bustling legal practice. There was
further work as a volunteer, this time
with the Western Suburbs Legal Service.
It was an exciting and rewarding time. It
also provided opportunity to put some
polish on snooker skills at the Footscray
Mechanics Institute. And one cannot forget the many lively discussions enjoyed
with friends over chocolate cake at the
famous Cockatoo Cafe.
In 1988 His Honour was appointed
a Magistrate and sat in the City Court
and the Children’s Court. The first years
on the Magistrates Court Bench were a
valuable and enjoyable learning experience under the auspices of such learned
Magistrates as John Dugan and, as she
then was, Sally Brown, now her Honour
Justice Sally Brown. There followed nine
years at Broadmeadows with Bob Kumar,
a person who had greatly impressed his
Honour when he appeared in his Court
as counsel.
Farewells
In 2001 his Honour became the State’s
co-ordinating Magistrate and in 2003 came
appointment as Deputy Chief Magistrate.
In 2004 came appointment as supervising
magistrate for Koori Courts in Victoria.
This role was tackled with his Honour’s
customary enthusiasm, visiting Koori
Courts throughout the State and working with elders. In the role of President of
the Children’s Court, his Honour hopes to
expand the Children’s Koori Court to rural
areas.
Throughout his legal career, his Honour
has exhibited a tireless and enthusiastic
commitment to social justice. This has
in part been evident by membership of
the Victorian Death Review Committee,
the Community Council Against Violence
Working Party, advisory group for health
services for abused Victorian children,
and the Metropolitan Regional Aboriginal
Justice Advisory Committee.
His Honour continues to enjoy a range
of interests outside the law, including
membership of a particular bookclub
whose members include a number of
brother Judges.
Despite deep affiliation with the
Western suburbs, the “Dees” hold
unswerving support. It is rumoured that
a Melbourne guernsey presented at a
milestone birthday remains one of his
Honour’s prized possessions.
His Honour is a proud family person.
He is devoted to his wife and friend
Lisa, and to sons Tom and Phil. They
have recently returned from an inaugural overseas holiday and eagerly look
forward to many further overseas travels
together.
His Honour is widely regarded in the
legal profession as a fair-minded, compassionate and good lawyer. There are countless friends within the legal profession, as
well as registrars and court staff of the
various courts in which his Honour has
worked to date.
His Honour acknowledged at the
Welcome his very positive impression of
the way his friend, Magistrate Bob Kumar,
treated all people who came before him
with respect, regardless of background or
circumstances. It is this very same quality
in his Honour that endears him to so many.
The role of President of the Children’s
Court was previously held by her Honour
Judge Coate. She is widely recognised as
having led the Children’s Court with distinction. The Bar is confident his Honour
will prove a worthy successor and will
further enhance the reputation of that
Court. The Bar wishes his Honour a long
and fruitful career on the Bench.
Court of Appeal
Justice Stephen Charles
O
N Thursday 6 April 2006 a large
body of judges, practitioners,
family and friends gathered in the
Banco Court to farewell the Honourable
Justice Charles upon his retirement from
the Supreme Court of Victoria.
His Honour was appointed a Justice of
Appeal on 13 June 1995, one of the three
new members of the Court appointed
directly from the Bar, the other two members being Winneke P and Callaway JA.
In relating aspects of his Honour’s background, the Chairman of the Bar, Kate
McMillan S.C. said:
Your Honour’s education as a boarder at
Geelong Grammar School came at considerable family sacrifice and personal effort.
The Solicitor-General has detailed the merit
scholarships won by you at school. After
school, you worked for a year as a labourer
on the Snowy Mountain Scheme to raise
money to go to the University.
With your brothers, Arthur and Howard,
still at Geelong Grammar School, your
family circumstances did not allow you to
remain in residence at Trinity beyond your
first year.
For the remaining three years of your
law course, Your Honour was received into
the family of an old school friend and fellow law student — now retired Associate
Professor Charles Coppel, who is in court
today.
Professor Coppel is the son of the late
Dr E.G. Coppel KC, a brilliant legal scholar
and barrister, one of very few to earn the
higher doctorate, Doctor of Laws.
Dr Coppel served for several years as
an Acting Judge of this Court, and was
honoured for his services to the law by
being made a Companion of the Order of St
Michael and St George.
Many of Dr Coppel’s friends from the
Court were regular visitors to the Coppel
home. Thus Your Honour got to meet and
know Judges such as Tom Smith and Sir
Alistair Adam — also Sir Richard Eggelston
of the Commonwealth Industrial Court and
several members of the High Court.
As a student, and as a recent law graduate, Your Honour played a role in the movement to abolish the White Australia Policy.
In 1958 and 1959, Your Honour and
Professor Coppel served as President and
Secretary respectively of the Melbourne
University Students’ Representative Council.
With the conservative Bolte and Menzies
Governments in Melbourne and Canberra,
the Melbourne University SRC was the radical leader in the National Union of Australian University Students. Your Honour and
Professor Coppel strove mightily in urging
the NUAUS to come out against the White
Australia Policy. Queensland, in opposition, threatened secession from NUAUS.
But ultimately opposition to the policy was
carried.
Your Honour was also a member of the
small Immigration Reform Group, which in
1960 published a paper against the White
Australia Policy: Control or Colour Bar.
The diverse group included academics and recent graduates — it included
Sir James Gobbo; Justice Howard Nathan;
Professors Vincent Buckley and Hume Dow,
both of the English Department; and Professor Max Charlesworth of the Philosophy
Department.
His Honour had an outstanding career
at the Bar. Ms McMillan said:
After your reading period with the late Mr
Justice Harris of this Court, Your Honour’s
practice soon took off — although you were
not always in the high-flying commercial
and civil jurisdiction. It has been said that
in your early years at the Bar, Your Honour
specialised in prosecuting dirty books and
17
plays for the then responsible minister,
Ray Meagher. Your readers and colleagues
recall the many exhibits lying about your
chambers. “The Lecherous Milkman” was
one.
The harvest of one extensive government sweep of the porn shops filled your
chambers with glossy magazines in sealed
plastic covers. Not all visitors to your chambers at that time visited you for your ready
smile and dazzling wit. Even the visible
covers were decidedly distracting. At the
hearing, there were three bundles of the
choicest samples, still all sealed and stapled
up for prosecution, defence and the court.
Your Honour raced through the exhibits
and it is said that the learned Stipendiary
Magistrate nearly did himself an injury,
hastily wresting with the staples, trying to
keep up with Your Honour’s presentation
of the case.
Back to more serious matters — Your
Honour was the first-ever Assistant
Honorary Secretary of the Bar Council
— appointed in 1966. Then, in 1967, upon
your election to the Council, you became
Honorary Secretary.
With only a couple of breaks, Your Honour was a member of the Bar Council from
1967 to 1986. You served as Chairman of
the Bar Council from September 1983 until
March 1985.
Your Honour served many years on several Bar Council committees. In particular,
you chaired the Ethics Committee and you
were Chairman of the Company Law Committee for six years.
As well as your work and career at the
Bar, Your Honour was a lecturer in mercantile law at the University of Melbourne. You
also taught mercantile law and principles of
property and conveyancing in the Council
of Legal Education Course at the Royal
Melbourne Institute of Technology — an
outstanding teacher in a constellation of
extraordinarily good teachers, including Sir
Daryl Dawson teaching introduction to legal
method, Sir Edward Woodward teaching
torts, Justice Chernov teaching equity, and
Mr Ray Dunn teaching criminal procedure.
In 1987, Your Honour succeeded Chief
Justice Michael Black of the Federal Court
as Chairman of the Readers’ Practice Course
Committee. You chaired that committee for
five years. Your Honour and Chief Justice
Black were prime movers in the establishment, and the first 12 years, of the Readers’
Course. You still teach in that course.
From 1996 to 1998, Your Honour chaired
the Steering Committee for the landmark
report Equality of Opportunity for Women
at the Victorian Bar. No doubt prior to
undertaking your equality work Your Hon-
18
our made full disclosure of the equality
reigning in your own home as highlighted
in the article entitled, “These Four Men
Cook Dinners for Their Wives” published
in the Australian Women’s Weekly on 20
July 1966.
Although such role-reversal-aberrations
occurred only at three monthly intervals,
this was afforded a full-page spread with
colour photographs!
The dinners did not continue after the
article but they had served a purpose. Your
Honour had progressed from “sherry soup”
— described as little more than Bonox,
water and sherry — to your final effort,
a decorated standing crown roast with
sophisticated embellishments.
Both in the establishment and development of the Readers’ Course and in the area
of equality of opportunity, Your Honour
changed the landscape of the Bar. You
did so with your customary charm, grace,
sensitivity and modesty. As the SolicitorGeneral has observed, you smoothed the
way for a high level of survey responses
from judicial officers and courts. Nationally,
you served on the council of Australian Bar
Association for three years and as President
in 1985–86.
Before your appointment to the Court of
Appeal in 1995, Your Honour was a member of the Commonwealth Administrative
Review Council for four years and a member of the Victorian Barristers Disciplinary
Tribunal for five years.
Your Honour’s appointment in 1995 as a
foundation member of the Court of Appeal
was greeted with acclaim by the legal profession and particularly the Victorian Bar.
The Chairman then referred to his
Honour’s career on the Court of Appeal
citing the decision in Cleane Pty Ltd v
ANZ Banking Group Ltd [1999] 2 VR
573. She continued:
Your Honour’s judgment, with which President Winneke concurred, was adopted by
the English Court of Appeal in Locabail
(UK) Ltd v Bayfield Properties Ltd.
The issue was automatic disqualification
of a judge for financial interest where the
judge held shares in a corporate party to the
case at hand.
The High Court in Webb v R had rejected
the “real likelihood” or “real danger” of bias
test applied in the House of Lords. That
divergence remains — the test in Australia
being reasonable apprehension by a fairminded lay observer.
However, the English Court of Appeal
quoted from Your Honour’s judgment in
Cleane and adopted the principle of a case-
by-case assessment of the apprehension of
bias.
The English Court of Appeal judgment in
Locabail was delivered in November 1999.
It was not until June the next year that the
High Court heard the appeal in Cleane. It
was heard with Ebner v Official Trustee in
Bankruptcy (2000) 205 CLR 337.
The majority judgment in the High
Court noted, with interest, the adoption
of Your Honour’s judgment by the English
Court of Appeal and noted also that court
had included Chief Justice Lord Bingham,
who had contributed a chapter on judicial
ethics to Cranston’s Legal Ethics and Professional Responsibility, addressing the
issue of disqualification.
Subject to the different test for apprehended bias, the High Court adopted the
English Court of Appeal formulation based
on Your Honour’s judgment and upheld the
Court of Appeal decision in Cleane on that
basis.
There is a certain novelty in being
upheld on the basis of a foreign decision
that followed the decision being appealed.
I should say that there is no truth in the
rumour circulating that those in attendance
today are entitled to one CLE point!
With a touch of humour the Chairman
said:
Your Honour’s skills and abilities surfaced
early in life. As a student, Your Honour
committed to memory all the songs and patter of Tom Lehrer. The introductory patter
about Lehrer states: “Even before he came
to Harvard, he was well known in academic
circles for his masterly translation into
Latin of The Wizard of Oz, which remains,
even today, the standard Latin version of
that work.”
In your retirement, you may consider
spending a pleasant evening with the three
retired Jurisprudential musketeers (The
Honourable John Batt, the Honourable
J.D. Phillips and the Honourable William
Ormiston) debating the faithfulness of Mr
Lehrer’s Latin Wizard of Oz. You could distract Mr Justice Callaway from his continual
work in the Court by referring to him any
infelicities in Mr Lehrer’s Latin.
Maybe you could even sing a few Lehrer
songs together — “Be Prepared” and “Poisoning Pigeons in the Park” — and perhaps
“We Will All Go Together When We Go”.
Lest I be misunderstood, I should explain
that the latter song refers, not to recent
retirements, but to the threat of nuclear
holocaust. However, the song is thus:
We will all go together when we go!
All suffused with an incandescent glow!
There will be no more misery
When the world is our rotisserie?
Universal bereavement:
An inspiring achievement!
Yes, we will all go together when we go.
The Chairman concluded:
In your capacities as barrister, teacher,
leader of the Bar and judge, Your Honour
has been an outstanding person. In undertaking all of your roles, you have brought
to the task an enviable depth of intellectual rigour and you have applied yourself
assiduously throughout your career. In
addition, you have earned a reputation for
unfailing courtesy and charm, together with
an unparalleled ability to remain calm at all
times.
Your farewell today gives the Bar an
opportunity to acknowledge and thank you
for your valuable and significant contribution to the administration of justice, to this
Honourable Court, to the legal profession
and to the public.
The Victorian Bar wants you to know
that it holds Your Honour in the highest
esteem, that you have our respect and our
gratitude and that it regards you as one of
its much loved sons.
On behalf of the Bar, I wish Your Honour
a warm and affectionate farewell from this
Honourable Court and I trust that you and
your wife, Jenny, enjoy a long, happy and
satisfying retirement.
Afterwards his Honour and his wife
hosted a large gathering in the library
of the Supreme Court. His Honour had
declared that it would be the first and last
time they could host such a function in
one of Melbourne’s finest rooms. Within
weeks, his Honour was on a flight to
Prado in Italy where he was to be a guest
lecturer in comparative criminal law. We
are sure that his Honour’s wide range of
interests from art to golf will well occupy
him in the years to come.
Supreme Court
Master Bruce
disdain in relation to the subject. For
example, when asked by clients about
the financial consequences of party/party
and solicitor/client costs differential we
are all too frequently minded to say that
the question should be directed to our
instructors because it is really solicitors’
business!
However, the problem is more widespread. Roger Quick, writing in his preface to one of the two leading textbooks on
the subject1 has observed:
T
HE law relating to costs is fundamental to the administration of
justice in our society. It regulates
both the nature and level of the charges
that can be made by practitioners to their
clients; and, the costs and expenses that
can be recovered by parties to litigation
pursuant to court orders made in their
favour. There is perhaps no other subject
which creates such confusion and friction
between practitioners and their clients.
Historically it has been something of a
public relations nightmare for the profession.
So far as the Bar is concerned there is
usually to be found a general air of lofty
In Australia there is currently little understanding of the law of costs. In the past
solicitors have understood it better than
either barristers or judges. Numerous things
have meant that of recent times knowledge
of this area of the law has declined even
among solicitors; these include the use
of costs draftsmen to draw bills of costs
between parties to proceedings because
of the intricacies and complexities of the
scales of court costs with which such bills
must comply, or increasing use of time
costing systems to calculate solicitor and
client costs which do not require a knowledge of the legal principles underlying the
assessment of costs, and the absence of any
recent comprehensive statement of the law
of costs,
This was Tom’s special field of expertise. He served the Supreme Court of
Victoria for more than 32 years as its
Taxing Master, a curious title which
immediately engenders fear in many lay
clients — “not another tax”! It makes
sense, however, if one of the meanings of
its Latin root is kept in mind — taxare, to
appraise or assess. And that is what Tom
did: appraise or assess bills of costs in the
astonishing number of between 1000 and
1500 a year.
There must be something very special
about the office because in just over 100
years since it was established in 1905 we
have only had five Taxing Masters. The
first two, Morris Phillips (1905–1923)
and Edgar Trebilco (1923–1943) between
them served for 42 years.2 Then Louis
Oliver (1947–1961) served for 14 years3
followed by Cyril Fyffe who served for 12
years.
I venture to think that the principles
and practice of the Taxing Master’s Office
underwent a greater change under Tom’s
regime than had happened in all of the
years prior to his appointment. There was
also a dramatic increase in the burden of
work that the Taxing Master was required
to perform as the size and business of the
Supreme Court expanded to its present
levels.
So far as the Bar is concerned, in Tom’s
time we have experienced the end of brief
and refresher fees; the recognition of
daily and time based fees; the abolition
of the two-counsel rule (the compulsory
retainer of junior counsel to appear with
19
silks); the abolition of the two-thirds
rule (junior counsel charging two-thirds
of their leader’s fee); the requirement to
detail the tasks and the time taken for
their performance; etc. etc. The result is
that the taxation of barrister’s fees has
become far more complex than it ever was
before Tom’s time.
There have also been the elaborate
legislative changes requiring legal practitioners to provide costs information to
clients; and the detailed regulation of
costs agreements. These changes appear
in the Legal Practice Act 1996 and the
Legal Profession Act 2004 as well as
earlier legislation. Then again with the
collapse of legal aid schemes there has
come the judicial recognition of litigation
funding and various “success fees” which
would have mortified Tom’s predecessors.
Tom also had to grapple with the impact
on cost assessments of all of the modern
office information technology systems
and all of the current forms of electronic
communications and research. These
changes have added considerably both
to the Taxing Master’s workload and to
accommodating them to traditional costs
principles.
In Dimos v Watts4 Ormiston JA
described Tom as “... one of the most
experienced taxing officers in the common law world …”, as indeed he was, but
in addition he was as well one of the most
learned, hardworking and efficient Taxing
Masters. What characterised his approach
to the taxation of costs, as everyone who
appeared before him quickly learned,
was careful preparation and a meticulous
attention to detail informed by a complete
understanding of the underlying principles
of this area of the law which he drew from
all over the Commonwealth. For him this
area of the law was no arcane mystery, as
it may seem to others, but a vital aspect of
the administration of the law as indeed it
is. Tom realised that at the end of the day
it was his unique task to achieve a fair balance between the interests of successful
and unsuccessful litigants; and, between
practitioners and their clients. This task
he carried out with consummate ability,
flair and courtesy. He would speedily deal
with the often mundane, but nevertheless important, items in a bill, but when
it came to a point of principle or a novel
point he expected thorough researched
argument after which he would deliver ex
tempore reasons.
His remarkable success as a Taxing
Master can be measured in various ways.
Under the Rules of Court5 the Taxing
Master can be required to review items
20
ruled on in a taxation and to give written
reasons for the decision on review. This
was a right not often exercised. Further if
the decision on such a review was thought
to be unsatisfactory then the matter could
be further reviewed by a Judge,6 usually
sitting in the Practice Court. During Tom’s
32 or more years there were very few such
judicial reviews and even fewer that ever
found their way to the Court of Appeal.
Indeed the statistics show that overall the
number of judicial reviews of his rulings
were insignificant; and, the success rate
of those reviews were minuscule compared to the numbers of taxations which
he conducted over the years. Then again
if the unqualified respect and trust of the
profession is any guide then Tom had it to
the full, I take leave to say that few judicial
officers of our Court have enjoyed such a
reputation.
Tom’s personal background and some
humorous and other anecdotes about
him can be found in Kate McMillan S.C.’s
splendid and well researched farewell
speech which she delivered on behalf
of the Bar at his retirement sitting. It is
easily accessible on the Bar’s website.
What I wanted to record here is nothing
about that urbane, cultured — essentially
European — man with multi-faceted
interests in music and the arts; or, his
long time and rich contribution to tertiary
education, but rather of the marvellous
unsung but critically important role that
Tom played for such a long time in the
administration of justice in this State.
I have known Tom for a very long
time. We were contemporaries at the
Melbourne University Law School. After
graduation I indulged myself for a time
in the groves of academe. He became a
solicitor. Later when I underwent, if that
is the appropriate verb, articles of clerk-
ship I had a desk in a corner of his office.
Although I was formally articled to one of
his partners I really served my articles
under his guidance and I learned a lot
from him.
So having thus confessed my longstanding association with Tom I nevertheless take leave to think that I am correct in
saying that he was by far the best Taxing
Master that has served any Australian
Court.
I have only one reservation, it is this.
Because Tom’s rulings on a multitude of
important questions of practice and principle have been but rarely challenged, the
corpus of his learning is denied to most of
us. To put it another way, the fact that you
can ransack the reported and unreported
decisions of the Supreme Court of Victoria
and find little in the way of any judicial
consideration of Tom’s rulings means that
most of us are denied access to this rich
resource which was built up over so many
years. If only he would follow in the tradition of Phillips/Trebilco and Oliver, and
produce a text on costs we would be even
more grateful to him than we are for his
long judicial service.
Notes
1. Quick and Gainsworthy, Quick on Costs
(1996, looseleaf). The other is Dal Pont’s
Law of Costs (2003).
2. And between them they produced three
editions of Victoria’s first specialist text on
the subject, Phillips and Trebilco’s, Bills of
Costs (1916), (1924) and (1932).
3. He also wrote a text, The Law of Costs
(1960), which supplanted Phillips and Trebilco’s work as the then leading text on the
subject in Victoria.
4. [2000] VSC 154 at [24].
5. Order 63.56.1.
6. Order 63.57.
Family Court
Justice Alwynne Rowlands AO
LAST OF THE ALL-ROUNDERS
ARLY this year Justice Alwynne
Rowlands AO retired as a Judge
Administrator and Judge of The
Family Court and as a Presidential
Member of the federal Administrative
Appeals Tribunal after a long and distinguished legal career. While in the federal
E
jurisdiction he mostly sat in Sydney,
after 1989, where he now lives with his
wife, Marelle, although they spend some
months each year in their holiday house
at Blairgowrie. He last sat in Melbourne
as the presiding judge in the Full Court
in 2005.
Prior to the Family Court he was on
Farewell
the County Court and was the foundation President of the Victorian AAT (the
predecessor of VCAT). The latter was an
exciting time as FoI opened the workings
of the Victorian Government to the public
gaze, much to the delight of the newspapers. That was a period of front-page
headlines. The Family Court, of course,
ended all that.
The President of the New South Wales
Bar Association, Mr Michael Slattery S.C.,
said at the Judge’s Sydney farewell:
It is particularly important that a judge have
what we at the Bar rather like to think of
as a judicial temperament. On the Bench
your Honour undoubtedly represented
and represents a model of fine judicial temperament, unfailing courtesy, a true judicial
gravitas and the succinct judgment which
were the hallmarks of your Honour’s judicial
style … Your Honour’s approach has always
been to attend directly and exactly to the
legislation you were called upon to apply,
and to avoid the merely adventurous. Your
Honour once described the role of judges as
that of non-political professional umpires
who call the shots as they see them rather
than as they may desire them.
The judge has described judicial
independence as independence from the
executive but not from the law.
Probably the judicial work Alwynne
Rowlands most enjoyed was that of Judge
Marshal of the Royal Australian Navy
and then Judge Advocate General of the
Australian Defence Force, in the period
from 1987 to 1996, because of his longtime association with the Naval Reserve in
which he is the only reservist to have been
confirmed in the rank of Rear Admiral.
In 20 years at the Victorian Bar, culminating in silk in 1982, Justice Rowlands
had an even broader practice than his
range of judicial appointments suggest.
Early, when practising criminal law he
did 12 rape cases in 12 months (1968),
more than a decade later he did 12 national
wage cases for the Federal Government.
Along the way he had a large common law
circuit practice in the Western District
and did a series of high-profile marine
cases, generally acting for the Seamen’s
Union. These included the Hobart Bridge,
the Noongah, the Straitsman, the Blythe
Star and the Melbourne/Evans court
martial. He also did administrative law
matters and the academic and medical
salaries enquiries.
This was all mixed with planning
cases with clients as diverse as BP and
the National Trust. Once, as he passed a
BP service station in Richmond, he said
to his three young children, “that’s your
father’s contribution to the aesthetics of
Melbourne”. Nonetheless, Diana proudly
followed her parents into the law, Rebecca
and Rosalind preferred economics and
industrial design respectively. At present
the retired Judge has six grandchildren
and is hopeful of more.
Among his happiest memories are the
social life of the Bar during the sixties
and seventies. This included circuit, the
old common room (where you sat at table
in order of arrival — High Court Judge
alongside reader), restaurant lunches
with the “red faces” and sailing on the Bay
and the Gippsland Lakes.
He had four readers: Maguire, P.W.
McDermott, G.M. McDermott and Devries
and warned them all against narrow specialisation.
At the farewell in Melbourne, Judge
Wood, in purple, sat with a Full Court of
the Family Court to represent the County
Court. Kirkham QC spoke for the Bar and
the Defence Force.
The Bar wishes Alwynne Rowlands all
the best and hopes that he enjoys retirement as much as he obviously did the life
at the Bar and on the Bench.
Brian Shaw QC
B
RIAN Shaw retired from full time
practice at the end of April 2006.
He graduated from the University
of Melbourne with first class honours
degrees in both Arts and Law. He won the
Final Honours Prize and the Dwight Prize,
as the top history honours student and he
won the Supreme Court Prize as the top
student in Law. He went to Oxford and
placed first there also in a competitive
Bachelor of Civil Law class, winning the
Vinerian Scholarship.
Brian was admitted to practice on 2
March 1959, signed the Roll on 3 April
1959 and took silk in 1974. He read with
Sir Ninian Stephen. Upon retirement,
Brian had been in practice more than
47 years, and of that, more than30 years
as one of Her Majesty’s counsel. He was
also admitted to practice as a silk in every
other Australian State.
Brian served as Chairman of the Bar
Council for two years (1981 to 1983) and
before that as Vice-Chairman for two years
(1979 to 1981). He has been the leading
taxation silk in Australia and prominent in
all areas of commercial practice.
During Brian’s most recent appearance
before the High Court, in Commissioner
of Taxation v McNeil on 14 June 2006,
Justice Gummow summarised the significant contribution Brian has made to the
legal profession, as follows:
Before we adjourn there is one further
matter that should be said. The Court
understands that this may be the last
occasion on which it would have the assistance of leading counsel for the appellant.
Mr Shaw signed the roll of counsel as long
ago as 3 April 1959. Shortly thereafter, he
21
Obituary
first appeared in this Court. He was led by
Gillard QC in the case of Ferrum Metal
105 CLR 647. The judgment in the present
appeal, when it comes to be reported,
will appear, I imagine, in volume 225 or
thereafter of the Commonwealth Law
Reports. Thereby hangs a tale. In the last
45 years Mr Shaw has appeared in more
than 80 cases in this Court which have
been reported in the Commonwealth Law
Reports. The Court acknowledges with
gratitude the assistance provided over that
period and wishes Mr Shaw well.
Paul Ahearne
On behalf of the Bar, I wish Brian a long
and satisfying retirement.
Hartog Berkeley
H
ARTOG Berkeley retired from full
time practice at the end of June
2005. Hartog was admitted to
practice on 1 June 1959 and he signed
the Roll on 25 June 1959. He took silk in
1972. He read with Tom Hughes in Sydney
and William Harris in Melbourne. He was
admitted to practice as a silk in every
other Australian state.
Hartog is well remembered by his
friends and colleagues at the Bar, not only
for his colourful and engaging personality
but also for his formidable and forceful
reputation as a barrister and as a leader
of the Bar. He was generous with his time
in assisting other members of counsel
and has given a lifetime of service to the
Victorian Bar.
Hartog served as Chairman of the Bar
Council for two years (1979–1981). He
was a member of the Ethics Committee
and its Chairman for two years (1976–
1977). He was President of the Australian
Bar Association for two years (1979–1981)
and he was Solicitor-General for the State
of Victoria for ten years (1982–1992).
Hartog’s substantial contribution to the
Bar is illustrated not only by his contribution to the Bar Council and the Ethics
Committee but also by his contribution
to many other Bar committees, some
of which were (but not all) as follows:
the Practice Sub-Committees-Causes
(1972–1973), the Legal Aid Committee
(to December 1972), the Accommodation
22
Committee (Chairman) 1973–1976), the
Bar Secretariat (1976/77 to 1980/81),
the Joint Standing Committees Bar and
Law Institute (1976/77 to 1980/81), the
Applications Review Committee (May
1976 to June 1977), the Equality Before
the Law Committee — Chairman 1993 to
1994 and the Bar Centenary Committee
(1984, 1980/81 and Chairman 1981 to
1984). Also he was a member of the
Committee of Management (1979–1981)
of the Barristers’ Benevolent Association
of Victoria and the Bar’s Appointee to
the Victorian Law Foundation (1979
to 1981). He was also a member of the
Past Practising Chairmen’s Committee,
Chairman of the List G (1996/97) and a
member of the Board of Examiners as
well as its Chairman. He was an ex officio
member of the Law Reform Committee
(1976/77 to 1978/79) and on the Law
Reform Committee Panel–Administrative
Law (1993/94).
Hartog was a major “mover” in the
acquisition of two substantial pieces
of artwork by the Bar. In 1985, a committee comprising Berkeley QC (then
Solicitor-General), Shaw QC, Charles
QC and Byrne QC was formed to consult
with the Victorian Tapestry Workshop and
the Silks’ Tapestry was commissioned.
It is hanging in the foyer in Owen Dixon
Chambers West and, it has been said that
if you look very carefully, one of the barristers depicted in the Tapestry bears a
remarkable resemblance to Hartog. In
2002, Hartog together with Peter Jopling
QC, Robin Brett QC, Campbell Thompson
and Michelle Gordon persuaded some
ninety Queen’s Counsel and Senior
Counsel to donate $1,000 each for the
commission of the sculpture by noted
Australian sculptor, Paul Selwyn. The
sculpture was unveiled by the Honourable
Sir John Young at a reception on 24 March
2003 and it is located in the foyer of Owen
Dixon Chambers East.
On behalf of the Bar, I wish Hartog a
long and satisfying retirement and I thank
him for his substantial contribution to the
Bar over his time at the Bar.
Address by Jack Keenan QC at St
Patrick’s Cathedral on Tuesday 11
April 2006 at the Requiem Mass for
the late Paul Ahearne, barrister-atlaw.
P
AUL Darrell Ahearne was born in
Hobart on 10 February 1921. He
was the son of a builder. The family
came to Melbourne and he went to school
at De La Salle College in Malvern.
After his schooling, at the age of 17,
Paul started work with the Department
of the Treasury Taxation Branch. He
remained with Treasury until 1942, when
he enlisted in the Royal Australian Air
Force. He served in its meteorological
service.
In 1943, he was seconded to the 2/12
Field Regiment of the 9th Division, 2nd
AIF. He took part in the landings at Lae
and Finschhafen, and served in New
Guinea 1943 to 1944. He is said to have
been one of the pioneers of meteorological co-operation with artillery — and was
often behind enemy lines, sending up his
weather balloons.
On at least one occasion, he narrowly
missed death. He was advancing, and
found himself face to face with a Japanese
soldier. An Australian voice from behind
him called out “Paul! Duck!” He did, and
the bullet from a Western Australian kangaroo shooter whizzed over him, cutting
down the Japanese soldier.
After the War, he was a student at
Newman College within the University of
Melbourne. He was a good athlete, and a
member of the College athletic team.
He returned to the Treasury Taxation
Branch, and achieved a series of rapid
promotions through Assessor grade 2 to
Assessor grade 4. He also continued his
studies part-time. He graduated Bachelor
of Arts and Bachelor of Laws, and had
additional subjects in Accountancy with
the Commerce Faculty.
Paul served his articles with Gordon
Rennick of Rennick & Gaynor — then
a solicitor at the Office of the Deputy
Commonwealth Crown Solicitor in
Melbourne. The Deputy Crown Solicitor
then was one E.F. Whitlam, the father of
E.G. Whitlam. Paul was admitted to practice on 1 December 1949.
Paul continued with the Crown
Solicitor’s Office, and achieved another
series of rapid promotions from Legal
Officer Grade 1 in 1949 to Senior Legal
Officer in March 1955.
In September 1957, he became Senior
Clerk and Deputy Registrar for Victoria of
the High Court of Australia. Melbourne
was then the Principal Registry of the High
Court, and in those days, the Registrars
had judicial functions similar to those of
Masters in the Supreme Court.
Paul was High Court Deputy Registrar
at the same time that Daryl Wraith was an
Associate to the late Sir Douglas Menzies.
Wraith says that Paul enjoyed the confidence of all members of the High Court in
those busy years.
Paul served as Deputy Registrar until
he came to the Bar in March 1965. Paul
signed the Bar Roll the same day as Daryl
Wraith.
Sir Douglas Menzies, upon hearing
of Paul’s intention to come to the Bar,
called him into his Chambers. Sir Douglas
wished him well and gave him a piece of
advice: “Put your chest out Mr Ahearne,
and keep your head up as a barrister.”
Paul read with the late Arthur Webb.
He was Webb’s last reader, Webb taking
silk in December1966.
Upon going to the Bar Paul specialised
in taxation and commercial law, and built
up a busy practice.
Paul frequently recounted to his colleagues the advice he had received from
Sir Douglas Menzies. Those colleagues
included the late Judge Jim Howden,
Judge Leslie Ross, myself, Arthur Adams
QC, the late Julian Zahara, the late Rob
Webster and Scottie McLeod retired
Magistrate.
This group was known as the “Tall Girls’
Club”, and Paul, although a Commercial
and Taxation lawyer, used to enjoy the
camaraderie — and the cut and thrust
of the ribbing between Common Law colleagues which so frequently occurred.
We used to congregate at Bell’s Hotel
after a successful or adverse result of one
of our merry band. One way or another,
we’d celebrate or commiserate.
Paul’s contribution to this Club was
always one of measured, detached views
of the emotional issues under discussion,
such as the shortcomings of Judges and
opposing barristers.
The “Tall Girls’ Club” was dissolved
very publicly by announcement of Judge
Howden, in Court, in his remarks at the
Ceremonial Sitting to Welcome him to the
County Court.
Paul kept up his practising certificate,
and was a member of the practising list
right up to his death.
He never applied for silk, and said, a little ruefully, that he had never had a silk’s
income.
In 1998, Paul described himself as “in
the sunset years, with numerous erstwhile
supporters retired and deceased”.
In recent years, he described himself
as “still enjoying undiminished intellectual alacrity, but suffering the bitter
biased slings of ageism”. He described
himself varyingly as “the gradually-vanishing semi-retired”, “the almost retired — in
a protracted swan song” and as in a state
of “inchoate retirement”. He said he maintained his practising certificate “mainly
to cover a continuing pro bono commitment” — a long drawn-out Estates case in
which he believed his client was wrongly
treated, and for whom he acted without
fee.
At the grand age of 85, Paul was surely
the oldest person on the practising list.
And he practised right to the end. His last
fee slip was in December 2005.
All the time he was at the Bar, Paul’s
measured life was one which saw concentration upon his religious duties. He
attended Mass frequently, and I well
remember him giving me, some 15 years
ago, St Thomas A’Kempis book, The
Imitation of Christ.
This was a book which was read from
daily by St Ignatius of Loyola, who used to
encourage others to read it too.
In particular, St Thomas A’Kempis
had great devotion to the Blessed
Sacrament, and Paul Ahearne had dogeared pages 443–450 of the copy he gave
me. Those pages dealt with the “Blessed
Sacrament”.
I was able to retrieve, with the assistance of my wife, my copy of this book and
I have it here beside me, and I shall always
keep it within easy reach for reference as
I grow older.
In life, Paul Ahearne was an ardent
Collingwood Football Club supporter, a
member of the Naval and Military Club
and for many years lived with Norma
McKinnon, in an inspiring spiritual friendship of mutual support.
That friendship endured many financial
hardships because it was one essentially
of a close spiritual affinity characterised
by constant prayer and consideration
for each other and in particular, other
persons who were in need of spiritual
refurbishment.
In the meantime, he pursued his legal
practice in typical scholarly fashion. He
was able to quote Latin phrases at will.
He performed his work without fear or
favour, and was a formidable advocate.
Paul was much inspired by the late
Bishop Fulton Sheen, I am told that in the
last few weeks when he realised that his
tenure of life was limited, he prayed to the
soul of the late Bishop Fulton Sheen in the
hope that some miracle might deliver him
from the ill-health which had overcome
him. He was much taken by the compulsive oratory of that exceptional Bishop,
who is remembered from the 1950s and
60s as a mesmerising radio, and even
perhaps television, figure — putting so
eloquently the doctrines and teachings
of the Catholic Church. He was in effect
a Billy Graham of the Catholic Church. I
am told he visited Australia and that Paul
remembered well, for one short moment,
seeing the Bishop in Melbourne.
Paul Ahearne leaves behind him memories of intellectual jousts, religious faith,
a well-versed legal mind, and a compassion for others based upon a sincere, deep
religious conviction that the hereafter
was to be sought more than the here and
now.
The restless search for money, social
position, and judicial appointment which
beset so many of us in practice at the Bar,
did not trouble Paul Ahearne.
May his dear soul rest in peace and
our deep sympathy is extended to his
soul mate in a very real sense, Norma
McKinnon, and to his brother Max’s
family: Tony, John, Elizabeth, Margaret,
Gerard, Damian, Pauline and Maureen
— and to their families.
23
News and Views
LAW WEEK ORATION 2006
Defending Unpopular
Causes in a Climate of Fear
Lex Lasry QC
T
HAT I am delivering this lecture in
2006 is a great honour for me. Apart
from the distinguished company
in which I am making this speech, it is a
particular honour to be doing so the year
after it was delivered by Professor Tim
McCormack.
Tim and I have not known each other
all that long but in a short time we have
formed a strong friendship and since I
have known him, Tim’s compassion and
depth of intellect have always amazed
me.
In 1963 Martin Luther King wrote a
book entitled Strength to Love in which
he asserted that:
The ultimate measure of a man is not where
he stands in moments of comfort and convenience, but where he stands at times of
challenge and controversy.
I chose tonight’s topic particularly
with lawyers in mind, because where
the unpopular cause is embodied by an
individual accused of serious crime, it is
inevitably left to lawyers to defend them.
We do live in times of challenge and controversy.
Because an undermining of the rule
of law and due process has been led by
the United States in recent times, I want
to refer to some of the unpopular causes
in which lawyers in the US have distinguished themselves and where the rule
of law has been defended. I take three
examples.
In the 1840s, the United States lawyer William Seward, who later became
Abraham Lincoln’s Secretary of State,
defended a black man named William
Freeman, who had stabbed four white
people to death and wounded several others. One of the miracles of the case was
that Freeman got to trial without being
lynched by the local community, bent on
24
Lex Lasry QC
revenge. At trial, Seward established that
Freeman was in fact insane. In the course
of the trial, when addressing the jury the
following inspirational words came from
Seward:
I plead not for a murderer. I have no inducement, no motive to do so. I have addressed
my fellow-citizens in many various relations,
when rewards of wealth and fame awaited
me. I have been cheered on other occasions
by manifestations of popular approbation
and sympathy; and where there was no
such encouragement, I have at least had the
gratitude of him whose cause l defended.
But I speak now in the hearing of a people
who have prejudged the prisoner and condemned me for pleading his behalf ...
And, immortalised by Hollywood, who
among us old enough to recall could forget the 1950s movie with Spencer Tracey
and Frederick March “Inherit the Wind”,
depicting the great Clarence Darrow in
the Scopes trial in Tennessee in the early
1920s. Darrow was defending a teacher,
John Scopes, who was accused of breaking
a state law by teaching Darwin’s theories
of evolution and had the rare privilege of
cross-examining the prosecutor — something I have long wanted to do.
In the 1930s lawyer Sam Leibowitz, a
Jewish New Yorker, went to Alabama and
defended the “Scottsboro Boys” — nine
young black men who were accused of
raping two white women and who, in
those days, were lucky to make it to trial
before being lynched. They were in fact
innocent — a little like the famous middleweight boxer Rubin “Hurricane” Carter
who served many years gaol for a murder
he did not commit, despite the exposure
by Bob Dylan in his song “The Hurricane”.
The important thing about Sam Leibowitz
was that he did his job under threats of
death and courtroom attacks requiring
state troopers to protect him because of
both his cause and his religion.
And presently as we speak, Clive
Stafford Smith — British lawyer now in
the US with our own Richard Bourke
— has done in excess of 300 death penalty
cases in Louisiana and Texas, acted for
British detainee Moazzam Begg, recently
released from Guantanamo Bay, and now
represents most of the other Guantanamo
detainees.
The unpopular cause has been
described as a vital respect in which the
law must serve our society, which is often
misunderstood by the layman and almost
as often disregarded by the lawyer. In the
criminal law such unpopular causes, in the
form of publicly maligned accused people,
are required to be defended regardless of
the means of the accused and certainly
regardless of the offence they are alleged
to have committed.
In 1963 the US Supreme Court in
Gideon v Wainwright overturned that
Court’s earlier view of the entitlement
to counsel under the 6th Amendment
to the US Constitution and extended it
to all indigent accused. And in 1992 the
Australian High Court effectively agreed
in Detrich v R and it was one of the great
humanitarian judges of that Court, Justice
Deane, who specifically echoed the sentiment expressed 20 years earlier in the US
Supreme Court.
In her researches on this topic of
defending unpopular causes, Professor
Abbe Smith from Georgetown Law School
has come to the view that the promise
of the US Supreme Court in Gideon v
Wainwright has not been met in the US.
One of the authorities she relies upon
for that conclusion is Stephen Bright who
in 1994 was the director of the Southern
Center for Human Rights in Atlanta,
Georgia, and Visiting Lecturer in Law
at the Yale Law School. He had been
involved in representation of those facing the death penalty at trials, on appeals,
and in post-conviction proceedings since
1979. He wrote a lengthy analysis of some
of the very poor quality of representation
in capital proceedings under the title
“Counsel for the poor: the death penalty
not for the worst crime but for the worst
lawyer”: At the end of his article he concluded:
So long as juries and judges are deprived of
critical information and the Bill of Rights is
ignored in the most emotionally and politically charged cases due to deficient legal
representation, the courts should not be
authorized to impose the extreme and
irrevocable penalty of death. Otherwise, the
death penalty will continue to be imposed,
not upon those who commit the worst
crimes, but upon those who have the misfortune to be assigned the worst lawyers.
I can recall Clive Stafford Smith telling me that in an early death case he
was involved in, the trial lawyer had slept
through much of the proceedings. Clive
felt optimistic on the basis that he only
had to stay awake to do a better job.
Fortunately we do not face that kind of
dilemma in Australia.
While I am on death penalty cases, let
me refer to a current death penalty case
that looks like an unpopular cause right in
the middle of the climate of fear.
I have watched on with what I hope is
not misplaced professional pride as lawyers who apparently believe in the principle have defended Zacarias Moussaoui,
the only person to be charged in an
American courtroom in direct connection
with the events of September 11.
Can you imagine what it would be like to
defend a person who laughed and sneered
as the prosecutor played to the jury the
recording of people losing their lives in the
World Trade Center towers and ridiculing
the families of those people as they wept
through the proceeding’s? He then enters
the witness box and jousts, not with the
prosecutor but with the defence lawyer.
Indeed he agrees with what is being put
to him by the prosecutor. In particular,
on the question of whether he should be
executed, Moussaoui apparently said that
he would try to kill Americans if his life
was spared finishing with the phrase “Any
time, anywhere.”
And one of his defence counsel was
Gerald Zerkin who is publicly criticised
by his client for being both American and
also for being Jewish, carrying on the Sam
Leibowitz tradition.
I think that’s really what
drives the crlminal defence
lawyer, the determination
that his client get a fair trial
... regardless of the crime,
the infamy of the case, the
notoriety of the client, the
difficulty of the case ... no
matter how unpopular you
might become by doing it.
And earlier this month that jury in
Alexandria, Virginia, said life imprisonment rather than death. Perhaps some
of them thought there had been enough
death.
In this era that case was probably the
epitome of an unpopular cause within the
fear of terrorism. The US Government
spent four years and millions of dollars prosecuting this man who did not
in fact participate in the attacks on
September 11. He was in custody at the
time. Georgetown Law Professor David
Cole pointed out when interviewed on
Australian radio that the absurd part
about this was that the Americans have
Khalid Sheikh Mohammed, the alleged
mastermind of the September 11 attacks,
in custody at Guantanamo Bay. He has
been there for three years. However, they
can’t try him because he has been tortured and his trial, at least in any civilian
criminal justice system, would turn into
a trial of the US Government and their
interrogation techniques.
In Australia the willingness of lawyers
to defend unpopular causes has usually
been in good supply. A privilege of being
Chairman of the Victorian Criminal Bar
Association is leading a group of lawyers
who do this kind of work day in and day
out and often for very limited reward.
A local example, still talked about,
occurred 40 years ago in March 1966.
Three Victorian barristers represented
two small-time criminals who broke out
of Pentridge Prison in December of 1965,
allegedly killing a prison warder in the
escape and a second person while on the
run.
Phil Opas QC and Brian Bourke
defended Ronald Ryan; Jack Lazarus
defended Peter Walker. The case changed
Opas’ professional life and he left the
Bar. Ultimately it ended Ryan’s life on 3
February 1967; he was the last person to
be hanged in Victoria. In magnificent fashion Brian Bourke just keeps on going.
Contemporary colleagues of mine continue this tradition. For example, Chris
Dane QC vigourously defended Bandali
Debs, ultimately convicted of the brutal
murder of the two police in Moorabbin.
Before he was DPP, the late Geoff Flatman
(later Justice Flatman of the Supreme
Court) defended in the Walsh Street
murder trial. Amidst a media frenzy Colin
Lovitt QC defended Greg Domaszewicz at
the murder trial and inquest into the death
of Moe toddler Jaidyn Leskie. Lovitt’s attitude to such cases hit the mark when he
said: “I think that’s really what drives the
crlminal defence lawyer — the determination that his client get a fair trial ... regardless of the crime, the infamy of the case,
the notoriety of the client, the difficulty of
the case ... no matter how unpopular you
might become by doing it.”
These were all cases where public
notoriety was extreme. Everybody had a
view and few of those views if any were
sympathetic.
However, unpopular causes are not
only represented by clients who have
already been publicly condemned as dangerous, guilty and unworthy by the media
and police before they stand trial.
There are different unpopular causes
that also need to be defended in a climate
of fear — the rule of law itself; due process
and the independence of the judiciary.
The role of lawyers in the 21st century
is changing in response to the challenges
directed at the rule of law as Australia
becomes dominated by pragmatic social
conservative governments both at a State
and Federal level.
We are now without enough politicians as leaders who will take an idealistic
risk and lead the nation on human rights
25
and civil liberties. Instead the economy,
fear of terrorism and border security
dominate. Our Federal leaders have a well
developed, carefully spun instinct for job
preservation and they watch the public
mood with great care. They react to it by
the development of policy which will meet
with electoral approval based on economic
prosperity, making little allowance for the
idealism which might lead the community
to social improvement.
And so the security of political incumbency is underpinned by, among other
things, a climate of fear of terrorism
and more generally a fear of “the other”
(whether it be on the basis of religion,
race, ethnicity or political beliefs).
It is lawyers, particularly those concerned with the criminal law and other
human rights issues, who must become
more involved in the debate because it
is lawyers who understand the consequences and the potential of the erosion of the individual freedoms we take
for granted. And that means unpopular
causes.
It might be the defence of those
charged with terrorism or it might be
the public debate which has been magnificently led by Julian Burnside QC on
the sorry state we now have in Australia
where, authorised by the judgment of
the High Court in AI-Kateb v Goodwin
in 2004, a person can be detained indefinitely in immigration detention.
So far as those charged with terrorist
offences are concerned, defending the
unpopular cause is now hampered by
the 2004 National Security Information
(Criminal Proceedings) Act. That Act
among other things provides that the
Federal Attorney-General is entitled to be
treated as a party to criminal proceedings,
thus signalling to the jury that the particular matter is so serious that it requires not
just the Commonwealth Director of Public
Prosecutions but the assistance of Phillip
Ruddock himself.
The practical effect of that legislation
is that during such a trial in which the
Attorney-General is participating, if the
counsel for the accused wants to ask questions of a particular witness or to adduce
particular evidence, and the AttorneyGeneral believes such evidence might in
some way jeopardise national security,
he can halt the proceedings in order to
issue a certificate which would require
the court to be closed and a secret hearing conducted from which the accused
might be excluded to decide whether the
evidence could be called.
The judge is required to give primary
26
weight to the Attorney-General’s certificate in deciding whether or not to admit
the evidence. That certificate cannot be
challenged. In May 2005 this Act was
extended to all civil litigation rather than
just criminal trials. That means that those
who wish to challenge preventative detention or control orders may be precluded
from dealing with the material on which
they were detained or controlled.
In circumstances where Federal politicians compete with each other only to
demonstrate who could be tougher on
terrorists or refugees and who see lack
of significant public sympathy for such
people, it is left to lawyers to make the
public argument which is often a defence
of the rule of law itself. It is left to lawyers
to remind the community about the rule of
law. It is the role of lawyers to remind the
community that due process has a meaning which is critical to avoiding the abuse
of executive power. In the current climate
of fear this is the sometimes unpopular
cause.
Fifty-six years ago courageous
Australian lawyers, including the great
Ted Hill QC and Ted Laurie QC, then
juniors rather than silk, stood in the High
Court in November and December 1950
representing the Australian Communist
Party itself and various trade unions who
successfully challenged the validity of
the Menzies Government’s Communist
Party Dissolution Act of that same
year. The Act was largely based on the
naval and military defence power of the
Commonwealth under section 51 of the
Constitution
At the time there was a deep and public fear of communism. Winston Churchill
had coined the phrase “iron curtain” in
a speech in 1946 and spoke of the risks
of Soviet expansion. The Soviet Union
blockaded Berlin from 1948 to 1949.
Australian troops were in Korea and the
People’s Republic Of China came into
existence. Joe McCarthy, the Senator
from Wisconsin, had begun his campaign
of vilification and the FBI had started to
inquire into whether certain movie stars
were communists.
In an article published last year in
the University of Western Sydney Law
Review, Justice Michael Kirby referred
particularly to the Communist Party
Dissolution case. He placed it into a personal context which was that he was then
12 years old and his great uncle, who was
a decorated Gallipoli veteran, was also an
idealistic communist.
Very briefly, one of the interesting
things about that case in the modern
climate is that the Communist Party
Dissolution Act, had it survived the challenge, would have both instantly dissolved
the Australian Communist Party, and also
provided a procedure by which groups of
persons possessing communist affiliations
or connections could be the subject of
an application to the Governor-General
in Council to be declared an unlawful
association. When you read the case you
will see a different method but some
interesting parallels between the criteria
for selection of organisations that might
the subject of such a declaration and the
modern efforts under the criminal code to
broadly criminalise organisations which
can be designated as terrorist.
As Justice Kirby noted, the majority
of the Court intellectually led by Justice
Owen Dixon held that the Act was uncon-
It is left to lawyers to
remind the community about
the rule of law. It is the role
of lawyers to remind the
community that due process
has a meaning which is
critical to avoiding the
abuse of Executive power.
In the current climate of
fear this is the sometimes
unpopular cause.
stitutional. Justice Kirby drew attention
to the dissenting judgment of the Chief
Justice, Sir John Latham, and particularly
his quote from Oliver Cromwell saying
that “being comes before well being” — a
quote which implied that the very existence of the Commonwealth of Australia
was under threat.
In my own time I remember several
causes that were extremely unpopular.
One such cause was the opposition to the
war in Vietnam. Still feeling the effects of
the communist threat and in an “all-theway-with-LBJ” atmosphere, which bears
a striking resemblance to our present
relationship with the Bush White House,
Australia sent troops to prop up a corrupt
regime in Saigon, supposedly to prevent
the communist invasion from the north
— the domino theory prevailed. A favourite act of resistance of mine during that
period was by the great Mohammed Ali
who risked everything rather than accept
compulsory enlistment in the US Army.
In passing I have to admit that his world
title fight against George Foreman in what
was Zaire in 1974 is, to me, perhaps, the
most inspiring sporting event in modern
history.
Of course ultimately that cause converted from an unpopular cause to a popular cause. The Whitlam government was
elected and then was quickly floored and
defeated by a man I detested at the time
and who I now admire enormously for his
outspoken courage — Malcolm Fraser has
become our conscience.
The most recent trigger point for
the change of climate was obviously
September 11. Now in this country the
pressure from the fear of terrorism seems
to me to have caused our community
to lose a further degree of its sense of
moral outrage at some of the developments which are occurring in the name of
defending public safety.
For example, that public fear has triggered a debate about whether torture
might in some circumstances be not only
tolerated as a necessary evil, but even
legally recognised and supervised.
As American congresswoman Jane
Harman found out, it is now necessary to
think like a post-9-11, lawyer. She asked
a Dick Cheney staffer whether he was
worried that the Vice-President might be
charged after shooting his hunting partner
in the face. She was told that her problem
was that she was examining the matter
like a pre-9-11 lawyer. Post 9-11, the
Vice-President had all the constitutional
authority he needed to take that shot!
Now there are several categories of
unpopular causes that require urgent
defence. Regrettably the rule of law
may be the most unpopular cause that
requires defending in these modern post
9-11 times.
One of the arguments that has been
raging in the United States in recent
times has been the extent to which the
Authorization to Use Military Force given
to President Bush a week after September
11 in 2001 permits curtailment of statutory
rights by allowing so-called warrant-less
wire-taps in the US and the establishment
of the demonstrably unfair and unjust
(to the extent there is any difference)
military commissions at Guantanamo Bay.
But as the rule of law and due process is
compromised in the name of the war on
terror, we would do well to consider the
principles under which the Nazi leaders
were dealt with at the end of World War II.
This was a catastrophic regime for Europe
and the world, and at the insistence of
the United States war crimes trials were
held for the very reason articulated so
clearly by Justice Robert Jackson when he
opened the Nuremburg trials in November
1945 and emphasising the need for fair trials said:
We must never forget that the record on
which we judge these defendants today
is the record on which history will judge
us tomorrow. To pass these defendants a
poisoned chalice is to put it to our own lips
as well. We must summon such detachment
and intellectual integrity to our task that
this trial will commend itself to posterity
as fulfilling humanity’s aspirations to do
justice.
So, my topic is not just about defending
unpopular causes. It is about defence in
a climate of fear — currently, the fear of
a random terrorist attack as occurred in
September 2001 in the US.
As many have observed because it is
obvious, fear weakens the determination
to protect rights where an assurance is
given that to diminish those rights will
protect us and, in any event, if you have
nothing to hide you won’t need those
rights anyway. And people buy that logic.
Thus, we are kept in fear of terrorism though no terrorist attack has yet
occurred on Australian soil.
On the strength of that concern the
support for a US President who seems
almost devoid of principle or talent for
his office reached record highs. Now with
incompetence after Hurricane Katrina
and the American public seeing the dishonesty of the rationale for the war in
Iraq and the deaths of many American
servicemen, let alone Iraqis, the support
has reached record lows.
Here in Australia, such momentum
as the Federal Opposition had generated prior to the Tampa incident and 11
September quickly dissipated and has
never returned and neither has the idealism — it is just too risky. Me-too-ism is
safer.
All this occurred under the stewardship
of a Prime Minister who quickly recognised the benefits of incumbency and the
ease with which frightened voters would
be content to empower police forces and
intelligence agencies in a way they could
not previously have dreamed of.
One feature of what is happening is
a government and social tendency to
exclude particular groups from the entitlement to basic human rights. That is
said to be necessary because we live in
different times. The case of David Hicks
is such a case. This case is poisoning our
credibility.
Those who defend the present arrange-
ments accuse him of being a terrorist and
deserving of the fate that has befallen him.
But just examine a few features of the military commission process that he has been
trapped by and ask yourselves why our
government not only condones the process as fair but encourages it, demonising
Hicks himself for daring to pursue habeas
challenges in the US courts.
Through weakness or wilful blindness,
the Australian government (unlike the
British Government) simply refuses to
engage on this issue. The Prime Minister
looks into the lens of the camera with
that slightly angular expression he gets
and says “We disagree that it is unfair”
and after all if he did not go through this
process he could not be charged with
anything here and since we have spent so
much time demonising him, we couldn’t
have that, could we? For those concerned
about due process and the rule of law, the
sight of John Howard and George Bush
fawning over each other last week is
almost too much to bear.
However, there are a few problems
with the Hicks case that have made it
harder for the Australian government to
demonise him in order to demonstrate
that he deserved his punishment even if it
was not imposed after a trial.
The first problem is that David Hicks
is an Australian with an ordinary decent
father who has stood with his son at every
step of the way. Australians like that.
The next problem is that for obvious reasons there are no Americans at
Guantanamo Bay and when, by some
oversight, they have found their way
there they have been quickly pulled out
and placed into the US civilian system.
And the English don’t like Guantanamo
Bay; they do not think it’s justified and all
their citizens have been released. And
nuisances like Attorney-General Lord
Goldsmith and Lord Steyn have expressed
their outrage publicly about the way the
system at Guantanamo works.
Thirdly, there is another nuisance
known as Major Dan Mori of the US Marine
Corps. He may not be photogenic, but he
is made for television. He is articulate, reasonable and everybody loves him.
And worse for the Government, Major
Mori is credible — why? Because he is a
marine doing his job. Whenever I have
made speeches about this case I am regularly asked about what is happening to
Major Mori’s career? It is assumed it would
be under threat. The Australian government’s support for Guantanamo is unsustainable. In many ways the unpopular
cause has become popular because many
27
Australians see the injustice. So what does
the Government do? They just ignore it
and hope that this flawed process will
find Hicks guilty of something — anything
— and then they can say it wasn’t a trophy
trial — whoops, sorry — wrong trial.
On a topic dear to my heart let me
demonstrate how pragmatism and the
desire to capitalise on the fear of terrorism has compromised the Prime Minister.
The topic is capital punishment. Australia
abolished capital punishment in the 1970s
by, among other things, a Federal Act of
Parliament. In 1990 we ratified the Second
Optional Protocol to the International
Covenant on Civil and Political Rights.
That protocol is aimed at the abolition of
the death penalty as a matter of human
rights and human dignity. Mr Howard’s
position? He is against the death penalty
for pragmatic reasons — what are they?
Mistakes can be made — never mind the
principles. He is against the death penalty
for Australians. Whether he likes it or
not his message to the electorate is that
he is for the death penalty for terrorists
and Saddam Hussein. Why? Because he
knows that a large proportion of Howard’s
battlers feel that way and rather than lead
on principle he compromises Australia’s
standing on the issue.
These days another sometime unpopular cause is the defence of our judiciary in
the face of regular, populist and sometimes
hysterical criticism. Within the modern
media there is now an outrage Industry.
One of the results of this outrage industry
is that comments about the criminal justice system which would normally attract
condemnation are forgiven — indeed pass
without comment, signifying acceptance.
It is very much an issue in the United
States. The Executive Director of an
organisation known as “Justice at Stake”,
Bert Bradenberg, in referring to the US
criminal courts says we are in a cycle of
public criticism of judges at the moment.
Criticism, he says, is not a bad thing.
Judges are public servants and certainly
not beyond criticism. However, the point
he makes is that unlike previous eras
there is now an outrage industry in tabloid newspapers and cable news services.
In ensuring that the role and independence of our judges is protected and thus
the rule of law itself is protected, this is
something that we as lawyers must be
careful of.
The outrage industry that operates
both in the US and here tends to be triggered by a particularly bad case where
a horrible crime has been committed
and a judicial decision has, for example,
28
excluded important evidence or imposed
a lenient sentence. The outrage will be
manifested as either complaints about the
sentence imposed, or the fact that a criminal has been allowed to go free. Rather
than reporting the detail of how the decision or sentence came to be passed, and
exercising their editorial judgment by
educating the public about the importance of an independent judiciary, the
media solution is often to turn the judge
into the villain. The idea is to exclude him
or her from the mainstream and accuse
the judge of being unaccountable.
Attacks on judges like this are very
harmful because they undercut the credibility of the courts and they empower
governments to accept the public assertion often beginning with victims groups
that judges are out of touch with the community.
Judges are human — I do not have any
doubt that some judges and magistrates
are influenced by this pressure. However,
often the result of the public discussion is
that politicians begin an analysis of how
the discretion of judges can be contracted
with measures like minimum mandatory
sentencing.
In addition, recently, we had to endure
the Commissioner of the Australian
Federal Police suggesting that in a trial
where a jury had heard all the evidence
that his police could find against Jack
Thomas and brought back a verdict of “not
guilty” on the two most serious counts,
the jury had somehow got that wrong. It
was time, he suggested, that more inadmissible evidence was put before juries so
they could know the full story and would
not be embarrassed when they acquitted
accused people in ignorance of that evidence. And who expressed outrage about
that? Me. That was it.
We simply must defend the independence of the judiciary and the criminal
justice process at all costs. It is our most
important means of preserving the rule of
law. Political interference with the process is per se to be regarded as undesirable, particularly when supported by law
enforcement agencies. I have been to
countries where judges are compromised
and once that happens, public confidence
in the system collapses and the risk of
anarchy is high. Sierra Leone is such a
place.
There are a huge range of causes to be
defended both individual and Institutional.
We as lawyers have the responsibility to
conduct that defence and we should do it
with pride. As Mohammed Ali would say:
Me; we.
The Essoign
Wine Report
By Andrew N.
Bristow
NARKOOJEE PINOT NOIR 2004
N
ARKOOJEE is a boutique winery,
which was a dairy farm owned
operated by Edna and Athelstone
Friend, since the early 1940s. Their
son Harry planted the first experimental vines in 1980. Narkoojee
means “place of flowers”.
The 2004 Pinot Noir grapes were
picked on 7 April 2004 during vintage conditions that were very cool.
This produced grapes with full, ripe
flavours and excellent acid retention.
This wine has a bouquet of
mulberry, blackberry and black
cherry with hints of toasted oak and
tobacco.
The wine colour is a deep red
cherry.
The wine is rich, full-bodied with
full flavours of mulberries, blackberries and black cherries, mouth filling
with fine astringent tannins following
through to a long sharp finish on the
back palate. It is heavier than the
usual Pinot. Someone who likes the
Shiraz will like this wine. It has 13.5%
alcohol. It is ready to drink now and
will improve with age with its deep
fruit and strong tannins. It is available from the Essoign Club at $36.00
a bottle or $7.50 a glass (or $30.60
takeaway).
I would rate this wine as a junior
commercial barrister, a bit expensive
now, but probably able to justify the
price in a few years time.
News and Views
The Dreyfus Affair
Julian Burnside
O
NE hundred years ago, in July
1906, Alfred Dreyfus was finally
pardoned. The affair which bears
his name had lasted 12 years before
Dreyfus was vindicated.
On 26 September 1894, the French
Intelligence Service intercepted a message which had been sent to LieutenantColonel von Schwartzkoppen at the
German embassy in Paris. This document — later known universally as the
Bordereau — demonstrated that someone on the general staff of the French
Army had leaked important military
secrets to the Germans. An analysis of the
contents of the Bordereau suggested that
the author must have been an artillery
officer and must also have spent time in
four other sections of the army.
Colonel Sandherr was asked to investigate the matter and examined a list of
artillery officers to see whether any of
them fitted the profile of the probable
author. He lighted on the name of Alfred
Dreyfus, an artillery officer and a member
of the general staff. Sandherr was openly
anti-Semitic. He noted that Dreyfus was a
Jew and did not pursue any further possible suspects. He reported to the Minister
of War, General Mercier, that the spy in
the army ranks was Captain Dreyfus.
A handwriting expert from the Bank
of Paris was asked to examine the
Bordereau to see whether it had been
written by Captain Dreyfus. He said it
had not. Commandant du Paty de Clam
called Dreyfus in and asked him to take
some dictation, on the pretext that he,
du Paty, had injured his hand. On this
feeble pretext, he dictated a note which
included a number of the key words from
the Bordereau. At one point during this
minor farce, du Paty waited until Dreyfus
crossed one leg over the opposite knee
and then asked some pointed questions.
His theory, as he explained later to the
court martial, was that any increase in
Dreyfus’s heartbeat would be reflected
by corresponding movement of the leg
draped over the opposite knee. As he
noted no such response to his pointed
questions, he inferred that Dreyfus was
not only a spy but also dangerously able to
disguise his own emotional reactions.
The sample of Dreyfus’s handwriting,
obtained in this peculiar way, was shown
to a self-styled handwriting expert, one
Bertillon. Bertillon had devised a method
of handwriting analysis based on statistics
and, knowing in advance that the army
wanted Dreyfus’s writing to correspond
with that in the Bordereau, he found it to
be so. He later explained in his evidence
to the court martial that the obvious
differences between handwriting in the
Bordereau and Dreyfus’s own handwriting, could be explained by the fact that
Dreyfus had cunningly developed the
skill to imitate the handwriting of others.
Thus, the greater the difference between
Dreyfus’s handwriting and the writing in
the Bordereau, the greater the evidence
of Dreyfus’s deceit and dissimulation.
Even General Mercier could see the
weakness of the case against Dreyfus.
He equivocated, realizing that to charge
Dreyfus and fail would be a disaster for the
army. The proceeding would reveal that
there was a spy in the army, and a failed
prosecution would reveal the inability of
the army to hunt out the spy and bring
him to justice. But his hand was forced.
On 31 October 1894, word was leaked to
Edouard Drumont of La Libre Parole
that a Jewish officer had been arrested on
a charge of espionage. La Libre Parole
was a fiercely anti-Semitic newspaper and
it published the allegation and Dreyfus’s
name. It then pursued a campaign of
public vilification of Dreyfus. The campaign formed the backdrop against which
the court martial took place, from 19 to
22 December, 1894.
Dreyfus was represented by Edgar
Demange, one of France’s finest trial
lawyers. Demange asked that the court
martial be held in public. The request
was refused. Colonel Picquart attended
the hearings of the court martial on
the instructions of General Mercier. He
reported that the prosecution was not
going well, and that the judges appeared
to be hesitant about Dreyfus’s guilt.
Accordingly, General Mercier instructed
Major Henry to provide a secret dossier to
the judges. Major Henry approached the
judges out of session, and told them that
it was essential for national security that
the existence of the documents not be
disclosed either to Dreyfus or his counsel.
The secret dossier included documents
forged by Major Henry himself.
The documents in the dossier quickly
convinced the judges that Dreyfus was
guilty. After being stripped of his rank and
publicly humiliated, Dreyfus was sent to
Devil’s Island. There he was held in solitary confinement. His only company was
the guards, who were forbidden to speak
to him.
In March 1896 another document was
intercepted by the statistical section. That
document, later known as le Petit Bleu
identified the spy in the French Army as
being Major Walsin-Esterhazy. Colonel
Picquart, who had been instructed
to investigate the background of the
Dreyfus Affair, was thus able to compare
Esterhazy’s writing with the handwriting of the Bordereau. Having previously
been convinced that Dreyfus was guilty,
Picquart was soon convinced that Dreyfus
was innocent.
By September 1896, Picquart was
trying to convince the senior officers of
the general staff that Dreyfus was innocent. Unfortunately for Picquart, and for
Dreyfus, the officer who worked most
closely with Picquart in his investigation
was Major Henry. Major Henry realized
that the closer Picquart got to the truth
the more exposed was Henry himself, as it
was Henry who had forged the documents
in the secret dossier. Consequently, Henry
set to work falsifying further documents
designed to incriminate Dreyfus, and he
kept Esterhazy informed of the progress
of Picquart’s investigation.
In late October 1897, Picquart was
transferred from his position and was
sent on a series of missions to increasingly
remote parts. It was some time before he
realised that he had been removed from
the investigation without being told.
With Picquart safely out of the way,
Major Henry then produced a letter allegedly written by the Italian Embassy to the
German attaché, identifying Dreyfus by
name as the spy in the French Army.
29
In the meantime, Dreyfus’s wife
Lucie and his brother Mathieu had been
actively trying to have an inquiry into
Dreyfus’s guilt convened. Largely because
of Mathieu’s efforts, a photograph of the
original Bordereau was published in a
newspaper on 11 November, 1897. Thus
it was that it was seen by Monsieur de
Castro, a South American stockbroker.
Remarkably, M. de Castro recognized the
handwriting of the Bordereau as that of
one of his clients, Major Esterhazy. He
contacted Mathieu Dreyfus and the campaign then developed a head of steam.
Esterhazy was tried by court martial but
— astonishingly — he was acquitted,
despite all the evidence against him.
On 13 January, 1898, the journal
L’Aurore published a “letter to the
President of the Republic”. It was written
by Emile Zola. The banner headline read
“J’Accuse …!”. In the article which has
ever since been famous under that name,
Zola wrote:
I accuse General Mercier of having made
himself an accomplice in one of the greatest
crimes of history …
I accuse General Billot (Mercier’s successor as Minister of War) of having in his
hands decisive proof of the innocence of
Dreyfus and of having concealed them …
I accuse the judges of the (Dreyfus) court
martial of having violated all human rights
in condemning a prisoner on testimony kept
secret from him ...
Together with George Clemenceau, the
political editor of L’Aurore, Zola forced
France to face the fraud which had been
worked in Dreyfus’s court martial. For his
troubles, Zola was charged with criminal
libel and was convicted. During that trial,
General Mercier swore confidently that
Dreyfus was guilty and asserted that the
security of France was at stake. The press
published the names and addresses of the
jurors in Zola’s case and reiterated the
General’s message. Not surprisingly, in
these circumstances, Zola was convicted
and heavily fined.
On the 30 August, 1898, Major Henry
confessed his perjury against Dreyfus and
his falsification of the documents. He was
imprisoned, but committed suicide while
awaiting trial.
A year later, Dreyfus’ re-trial took
place, at Rennes in Brittany, in order to
avoid the passionate atmosphere of a
trial in Paris. It is a measure of the level
of anti-Semitism still prevalent in France
at the time, that Dreyfus was again convicted, by a five to two majority. But he
30
was found guilty of treason “with extenuating circumstances”. Just 10 days later,
on 19 September, 1899, the President of
France signed Dreyfus’s pardon. Dreyfus
accepted the pardon, but only on condition that he was entitled to continue to
pursue a campaign to demonstrate his
innocence — a pardon, after all, proceeds
from an assumption of guilt.
Six years later, on 12 July, 1906, after a
further inquiry, all three chambers of the
Supreme Court of Appeal sat jointly and
anulled the verdict of the second trial. The
court proclaimed Dreyfus innocent.
Dreyfus was subsequently reinstated in
the French Army. Notwithstanding all that
had gone before, the parliamentary vote
The possibility of secret
trials and trials in which
evidence is concealed
from the accused and
their counsel already
exist in Australia as a
matter of law. There are
several different pieces of
legislation which achieve
that lamentable result.
on the question of Dreyfus’s reinstatement was not unanimous: the Chamber
of Deputies voted 432 to 32 and in the
Senate the vote was 182 to 30. He saw
active service in the First World War and
died in 1935.
In 1943 one of his granddaughters,
Madeleine, was deported to Auschwitz
where she died. Lucy Dreyfus followed
her husband to the grave in December
1945.
Thirty years after the death of Alfred
Dreyfus, on 28 October 1965, the Second
Vatican Council released its “declaration on the relation of the church to
non-Christian religion”, familiarly known
as Nostra Aetate. In that document, the
Roman Catholic Church declared that the
death of Jesus Christ cannot be charged
against the Jews of today and it actively
denounced anti-Semitism. In 1973, the
French Republic passed a law prohibiting any demonstration of anti-Semitism.
In 1990, Prime Minister Michel Rocard
declared:
In France, anti-Semitism is not a matter of
opinion, it is a crime.
Notwithstanding these developments,
it was not until September 1995 that the
French Army first admitted publicly that
Dreyfus had been wrongly convicted. It
had earlier refused a gift of a statue of
Dreyfus offered to it by Prime Minister
Pompidou.
On the 100th anniversary of J’Accuse,
the French Parliament honoured Emile
Zola’s role in the Dreyfus affair. The
President, Jacques Chirac, apologized on
behalf of France to the families of Dreyfus
and Zola.
Two matters made the Dreyfus Affair possible:
(a) a secret trial and the use of evidence
concealed from the accused and his
counsel, and
(b) racial or religious prejudice which
ran so deep as to blind people to any
concern about the quality of justice
accorded to Dreyfus.
Anti-Semitism no longer exists in any
significant measure in Australia, at least
not in the virulent form which characterized 19th century France and the first half
of the 20th century in Western Europe
generally. However, there are other groups
who are sufficiently unpopular that, for
practical purposes, most members of the
community do not regard the rights of
those people as mattering. Those unpopular groups include alleged paedophiles,
alleged terrorists, Aborigines, people with
mental disorders and Muslims. This is
not to say that the feeling against each of
those groups runs as deep and as strong
as anti-Semitism at the time of Dreyfus’s
trial. But it is strong enough that a large
number of people in our society do not
regard the rights of those groups as being
important enough to deserve recognition
or protection.
The possibility of secret trials and trials
in which evidence is concealed from the
accused and their counsel already exist in
Australia as a matter of law. There are several different pieces of legislation which
achieve that lamentable result.
Division 105 of the Commonwealth
Criminal Code provides that a member
of the Federal Police may apply for a preventative detention order in relation to a
person. A preventative detention order
will result in a person being jailed for up
to 14 days in circumstances where they
have not been charged with, much less
convicted of, any offence. The order is
obtained ex parte and authorizes that the
person be taken into custody. When the
person is taken into custody pursuant to
the order, they will be given a copy of the
order and a “summary of the grounds” on
which the order was made. The summary
need not include any information which
is likely to prejudice national security
(within the meaning of the National
Security Information (Criminal and
Civil Proceedings) Act (2004)) (the NSI
Act).
Thus a preventative detention order
can be made not only without a trial of
any sort, but in circumstances where the
subject of the order will not be allowed
to know the evidence which was used to
secure the order.
Division 104 of the Commonwealth
Criminal Code allows a senior member
of the Federal Police to obtain a control
order against a person. A control order
can include an order confining a person
to a single address for up to 12 months,
without access to telephone or the internet. The orders are obtained ex parte.
When the subject of the control order is
served with the order, they are to be given
a summary of the grounds on which the
order was made, but not the evidence.
Thus, a person’s freedom of movement
can be grossly interfered with for up to 12
months in circumstances where they have
no opportunity to know the evidence on
which the order was obtained much less to
challenge it. The summary of the grounds
on which the order was obtained need
not include any information disclosure
of which is likely to prejudice national
security within the meaning of the NSI
Act
That brings me to the provisions of the
NSI Act. It is perhaps the most draconian
piece of legislation ever passed by an
Australian Parliament in time of peace.
The Act as originally passed was confined
in its operation to criminal proceedings. In
early 2005 it was amended so as to extend
to civil proceedings as well. It provides
that, if a party to a proceeding knows
or believes that they will disclose in the
proceeding information that relates to
national security, or the party intends to
call a witness and that witness would, by
their presence in court or by the evidence
they could give, disclose information that
relates to national security, then the party
must notify the Commonwealth AttorneyGeneral of the fact. The party must also
notify the opposite party and the court.
The court is then required to adjourn the
proceeding until the Attorney-General
acts on the matter. If the AttorneyGeneral chooses, he may sign a conclusive
certificate to the effect that the evidence
proposed to be called, or the proposed
calling of the witness, would be likely to
prejudice Australia’s national security
interests. The certificate must then be
provided to the court and the court must
hold a hearing to decide whether or not to
make an order preventing the evidence or
witness from being called.
During that hearing, the court must
be closed. The Act authorizes the court
to exclude both the relevant party and
his or her counsel from the closed hearing in which the question will be decided
whether or not the evidence may be called
or the witness brought to court.
In deciding the balance between the
interests of a fair trial and the national
security interests, the statute directs the
court to give the greatest weight to the
Attorney-General’s certificate that the
evidence would present a risk of prejudice
to national security.
These provisions are immediately
alarming to anyone who understands the
essential elements of a fair trial. They
are all the more alarming when the real
breadth of the provisions is understood.
Their breadth comes from two things:
(a) the notion “likely to prejudice national
security” is defined as meaning
that there is a “real, and not merely
remote, possibility that the disclosure
will prejudice national security”;
(b) the definition of national security
which means: “Australia’s defence,
security, international relations or law
enforcement interests”.
The apparently uncontroversial definition of national security is rendered astonishingly broad by the definition of “law
enforcement interests”. That expression
is defined as including interests in:
(a) avoiding disruption to national and
international efforts relating to law
enforcement, criminal intelligence,
criminal investigation, foreign intelligence and security intelligence;
(b) protecting the technologies and methods used to collect, analyse, secure or
otherwise deal with, criminal intelligence, foreign intelligence or security
intelligence;
(c) the protection and safety of informants and of persons associated with
informants;
(d) ensuring that intelligence and law
enforcement agencies are not discouraged from giving information to a
nation’s government and government
agencies.
By reference to this definition,
Australia’s national security is affected by
each of the following things, for example:
(a) evidence that a CIA operative
extracted a confession by use of torture;
(b) any evidence which tended to reveal
operational details of the CIA, Interpol,
the FBI, the Australian Federal Police,
the Egyptian Police, the American
authorities at Guantanamo Bay, etc.;
(c) evidence which tended to show the
use of torture or other inhumane
interrogation techniques by any law
enforcement agency.
These provisions are likely to have
31
powerful effect in several types of case.
First, in cases of people charged with terrorist offences. In such cases, confessional
statements may be received, but evidence
that torture or other improper practices
were used to obtain the confession may be
excluded, in the name of national security.
Second, where a person is the subject of a
preventative detention order or a control
order and they seek judicial review of the
order. Third, in cases where a person’s
ordinary rights have been interfered with
because of an adverse security assessment
by ASIO. In those circumstances, it may
prove impossible to have effective access
to the material on which ASIO acted
and thus impossible to challenge its accuracy.
There may be examples of the second
type, but we are not allowed to know. The
secrecy provisions surrounding control
orders and preventative detention orders
means that, in effect, the general public
will not learn of them until many years
have passed.
However, examples of the third type
can already be identified. An adverse
security assessment from ASIO can result
in a person’s passport being cancelled,
or their job application being refused, or
(for foreign visitors) a visa being refused
or cancelled. In those circumstances,
getting access to the material which
provided the foundation for the adverse
security assessment may prove difficult
or impossible. Attempts to challenge the
material can be met with a certificate of
the Attorney-General.
Adverse security assessments from
ASIO create another, related problem. An
adverse security assessment will result in
the cancellation of a visa or passport as the
case may be. Cancellation of a passport
may be challenged in the Administrative
Appeals Tribunal. The Administrative
Appeals Tribunal Act contains provisions
enabling the Attorney-General to grant a
certificate which, in substance, prevents
the applicant “and the applicant’s lawyer”
from being present in the Tribunal whilst
certain evidence is given and submissions
are made on behalf of the Government.
Here is the text of one such certificate,
issued early in 2006:
I, Philip Maxwell Ruddock, the AttorneyGeneral for the Commonwealth of Australia
… hereby certify … that disclosure of the
contents of the documents … described in
the schedules hereto, and the schedules,
would be contrary to the public interest
because the disclosure would prejudice
security.
32
I further certify … that evidence proposed to be adduced and submissions
proposed to be made by or on behalf of
the Director-General of Security concerning the documents … are of such a nature
that the disclosure of the evidence or submissions would be contrary to the public
interest because it would prejudice security.
As the responsible Minister … I do
not consent to a person representing the
applicant being present when evidence
described … above is adduced and such
submissions are made ….
In those short paragraphs, by official
certification, the Attorney-General produces the conditions which led to the false
conviction of Alfred Dreyfus. Note that the
paragraph which forbids a person representing the applicant being present when
evidence is adduced and submissions are
made does not depend on the identity of
the applicant’s representative. It is a curious thing that the government’s lawyers
are to be trusted with sensitive material,
but no lawyer acting for the applicant is
to be similarly trusted. Thus, the applicant
who seeks to have his passport restored
will face an impossible burden in knowing
what evidence must be called, because
he will not know the nature of the case
against him, either in advance or by the
end of the hearing.
Fair trials are one of the basic assumptions of a democratic society. It seems a
pity that we have abandoned the possibility of fair trials, ostensibly to help save
democracy from terrorists. These measures suggest that the greatest danger
to democracy in Australia is the Federal
government. (In case this is seen to be
an attack on the Howard government, it
is worth noting that the Labor opposition
did not oppose the measures.)
In December 2004, the House of Lords
decided a case about English legislation
which provided for detention of people
thought to present a terrorist risk if they
could not be deported. In an 8:1 decision,
the House of Lords determined that the
laws did not comply with the Human
Rights Act. Lord Hoffmann said “…the
real threat to the life of the nation, in the
sense of a people living in accordance
with its tradition laws and political values,
comes not from terrorism but from laws
such as these.”
How much more forcefully could that
be said of Australia’s “anti-terror” legislation.
We have been alert long enough: it is
time to be alarmed.
Julian Burnside
John Larkins
furniture
individually crafted
Desks, tables (conference, dining,
coffee, side and hall).
Folder stands for briefs and other items
in timber for chambers and home.
Workshop:
2 Alfred Street,
North Fitzroy 3068
Phone/Fax: 9486 4341
Email: [email protected]
News and Views
First Indigenous Woman at
the Bar: Linda A. Lovett
Georgina Schoff
O
N 11 May 2006 Ms Linda Lovett
Whilst studying her law degree Lovett
signed the Bar Roll, becoming the gained employment at the Department
Bar’s first female indigenous mem- of Justice in the Indigenous Issues Unit,
ber. Twenty-five years ago Mick Dodson a position that she enjoyed so much that
— now Professor in Indigenous
Studies at the Australian
National University — was the
first indigenous lawyer to sign
the Bar Roll; Lovett is only the
second.
Lovett initially trained to
be a dental nurse through the
Aboriginal Health Service, a
career that was interrupted
by her decision to start a
family. Three children later,
she decided to begin a law
degree which she completed at
Deakin University through the
Institute of Koori Education.
The Institute put her in touch
with other indigenous students studying for degrees at
Deakin.
During the second year of
her degree Lovett took advantage of the Victorian Bar mentoring program which paired
her with her Honour Judge
Felicity Hampel, then a silk
practising in crime.
Lovett recalls nervously
arranging to meet Hampel
S.C. in her chambers for what
she thought would simply be
a quiet chat about her studies. Instead she was amazed Linda A. Lovett.
to be swept up into Hampel’s
busy practice. There was a witness to be she almost did not finish her law degree.
seen immediately and in the afternoon During that time she was instrumenan appearance at VCAT. On the way back tal in establishing the Indigenous Law
to chambers Hampel gave a radio inter- Students and Lawyers Association, one
view by telephone from her car and the of 63 initiatives under the Aboriginal
next day Lovett was able to observe her Justice Agreement of 2000. Another
Honour appear in a Supreme Court trial. of those initiatives was the establishBy the end of the week Lovett had deter- ment of a scholarship for indigenous
mined that she wanted one day to come law students through the Department
of Justice, of which Lovett was the
to the Bar.
recipient in the final year of her law
degree.
Having completed her degree, Lovett
was offered articles at Victorian Legal Aid.
That too was a first for an indigenous lawyer in Victoria. In
March 2003 Lovett was admitted to practice as a barrister
and solicitor of the Supreme
Court of Victoria and obtained
employment with Victorian
Legal Aid at its Preston office.
She soon applied for and
obtained a permanent position at the VLA’s Sunshine
office where she appeared in
the Magistrates’ and Children’s
Courts almost every day at
contest mentions, bail applications, pleas and extradition
hearings. She comes to the
Bar with court experience that
many other new barristers are
yet to gain.
Until she applied to come
to the Victorian Bar Lovett
had no idea that she was the
first indigenous female to sign
the Bar Roll. Indeed, she says
she was amazed to discover
that this was the case. But
on reflection she thinks that
many indigenous lawyers take
up positions within their communities or with government
departments where they feel
they can work directly with
their communities.
Perhaps through her role as a barrister Lovett will have the opportunity
to serve the indigenous community as
many before her at the Victorian Bar have
done. But for now Lovett simply wants to
master the skills necessary to practice at
the Bar. She hopes to practice in criminal
law and to one day prosecute or defend in
the Supreme Court. Lovett is reading with
Jane Dixon.
33
News and Views
Children’s Court of Victoria
Celebrates its Centenary —
and a Baton Change
On Friday 21 April 2006, at a function
attended by many members of the
judiciary, the Bar, solicitors and
government officers, the Children’s Court
of Victoria celebrated 100 years since its
inception in 1906. It marked the occasion
by:
launching an exhibition — made possible
by the generosity of the Law Foundation
of Victoria — of documents, artefacts,
photo-graphs, archival and historical
material and memorabilia of and about
the Children’s Court spanning the past
100 years;
announcing the retirement of the
outgoing inaugural President of the
Children’s Court, Judge Jennifer Coate
and the appointment of its next President,
Judge Paul Grant;
exhibiting and displaying an array of
materials to be placed in a time capsule in
the Court’s foyer to be opened in 100 year’s
time; and
announcing that the school that won the
time capsule competition was Shelford
Girls’ Grammar (the school had created
and produced a video about the operations
of the court to be placed in the time
capsule).
In honour of the centenary celebrations
and to formally launch the centenary
exhibition, special guest Attorney-General
Rob Hulls gave the following address.
T
HIS jurisdiction touches the face of
human frailty in almost all its forms.
In dealing, as it does every day, with
the extremities of human experience and
their effects on the truly vulnerable, this
court has a rare and precious opportunity
— the capacity, in a small way, to make
good our promise to the next generation.
In a perfect world, of course, we
wouldn’t need a Children’s Court. In a
perfect world all children would live free
from the long-term poverty, social exclusion, relationship breakdown, family violence, substance abuse, mental illness and
disabilities which extract such a heavy
toll on families and their most treasured
charges.
As long as children need to come before
this court, however, it is upon us to ensure
that they are treated with compassion and
in a way that returns to them their opportunity to be children, their opportunity
34
Attorney-General Rob Hulls.
to greet each day in hope, security and
innocence. This court is entrusted with a
weighty responsibility, and today we can
celebrate the fact that it is meeting this
obligation better than ever before.
Because of the importance with which
the Government views this jurisdiction,
when we first came to office we established the Court, until that time a division
of the Magistrates’ Court, as an independent court. In doing so, we also provided
that it be headed by a County Court
judge, to be known as the President of the
Children’s Court of Victoria.
The Court’s recent history has been
marked by diligence, integrity and imagination, and all who have been involved in its
operation over the last few decades should
be very proud indeed. This exhibition,
however, put together by the Victorian
Law Foundation and commemorating the
Court’s centenary, shows us that these
Time capsule contents.
An enthusiastic crowd of well-wishers at the Children’s Court Centenary
celebrations.
qualities have not always been present as
the jurisdiction has struggled with changing attitudes about poverty, disadvantage,
and the very nature of childhood itself.
The exhibits around us are at once
sad and uplifting. The concept of childhood was only just emerging at the time
this jurisdiction was created and, as this
exhibition indicates, before 1906 children
were dealt with in adult courts, using the
same procedures and often penalties as
those meted out to adults. The establishment of a Children’s Court, then, was the
first step in recognising that youth and
consequent lack of power and legal standing meant that children needed care and
protection.
We could be forgiven for assuming that
this brought an end to the horrendous
punishment routinely meted out to children whose only offence may have been
begging. It is chilling, then, to read that:
From 1906, when a child was found guilty
of an offence, the Children’s Court had the
power to … order that the child be whipped
... [to] be done by a constable, parent or
guardian no more than three times with a
cane.
It is just as sobering to remember that,
until the 1960s, believe it or not, the official definition of neglect criminalised children who were simply orphaned, receiving
charity or simply deemed to be “uncontrollable”. As this exhibition recounts:
Police dealt with neglected children in
the same way as they dealt with children
committing crimes. Often, police would …
arrest the child on the street. Sometimes
bystanders or even the child’s parents
would report the child ... The police did not
need a warrant to arrest a child. The child
would be charged with being “neglected” or
“uncontrollable”.
For the child, this often ended not only
in a conviction but in being placed in the
care of the state in a children’s home or
industrial school.
This is, on the face of it, unimaginable
to us. Everyone here, whether as professionals or simply as parents, would
struggle to fathom how any civil society
could conduct itself in this way. Yet it is a
phenomenon with which one sector of the
population is only too familiar.
The business between Indigenous and
non-Indigenous Australia remains unfinished and it is to our collective shame that
the establishment of this Court initially
did little to ensure fairer decisions about
removing Koori children from their families, many being placed in dismal circumstances in reformatories and industrial
schools. As the exhibition recounts:
Aboriginal children being taken by police...
would be charged before [this] court with
being … neglected and in need of protection and custody. This continued until
1985, [while] before the 1960s, Aboriginal
children often appeared … without legal
representation.
We owe, as a nation, an enormous
apology to the Indigenous children of
yesterday — to those who have grown
up swimming in grief and who, as
adults, still carry their quiet despair. I
am proud, therefore, that we have now
established the Children’s Koori Court
to show compassion and respect to the
Indigenous children of today and tomorrow: a court that follows in the footsteps
of four grown-up and successful cousins
and which I hope will go some way to
35
Minister for Children Cheryl Garbutt receives a DVD to be placed in the time capsule from Shelford Girl’s Grammar
students Kylie Dolan, Francesca Kopeman and Molly Scanlon.
steering the burgeoning number of
Indigenous young people away from the
criminal justice system and towards community, hope and home.
This latest development in the
Children’s Court story shows how far we
have come collectively over the past century, and how optimistic we can be about
our future.
One of the sources of this optimism,
of course, is to be found in the people
who contribute to the functioning of this
Court and I would like to pay tribute to
those groups and individuals: officers
from Juvenile Justice; members of the
Salvation Army and Court Network who
provide invaluable information, advice
and support services; Victoria Legal Aid
whose duty lawyers serve their clients so
diligently; and the interpreters who make
sure that the court’s proceedings are
accessible to all.
It is also my privilege, of course, to
thank Judge Jennifer Coate for her magnificent contribution as first President.
Judge Coate has served in this jurisdiction
since 1995, first as Senior Magistrate, then
Deputy Chief Magistrate and, since 2000,
has been an exemplary first President.
She has presided over enormous
change, from computerisation; the
development of judicial and community
education programs and guidelines for
professionals; and the increase of the
age of the court’s jurisdiction to 18 years
under this Government’s reforms; to a
36
Newly appointed President of the
Children’s Court, Paul Grant.
range of initiatives which have made the
jurisdiction far more effective, accessible
and welcoming for those it is designed to
help.
Judge Coate is someone with outstanding judicial ability who has acted as
superb representative of the Court and a
powerful advocate for those who lack the
capacity to advocate for themselves. She
returns to the County Court to expand
her judicial experience and, on behalf of
all Victorians, I thank her enormously for
her unparalleled contribution.
It is also my great pleasure today to
welcome Paul Grant, who as you know,
was announced this week as incoming
President. Paul will bring immeasurable
skills, intelligence and compassion to his
position and I look forward to the next
successful chapter in the Children’s Court
story on Paul’s watch, charged as he is
with this crucial responsibility.
There is, quite simply, nothing more
important than the opportunities we give
our children, and the energy and the faith
we invest in the early years of life.
There is a familiar saying that it takes
a village to raise a child and, at the dawn
of its second century, this Court can and
must be a symbol of how we want to raise
those who have no choice but to invest
their trust in us — of how we accept
our obligation to vindicate this trust. In
declaring this exhibition open, then, I wish
this Court and, more importantly, all who
come through its doors a bright, happy
and promising future.
The exhibition of the centenary of the
Children’s Court was exhibited in Bendigo
from Law week until 16 June but returns
thereafter to the foyer of the Children’s
Court until at least the end of the year.
Members of the public and any interested
practitioners are encouraged to view the
exhibition of documents and memorabilia
over the next six months, after which the
exhibition may tour to other provincial
centres within Victoria.
A welcome to His Honour Judge Paul
Grant appears elsewhere in this issue of
Bar News.
News and Views
Farewell to First President
of the Children’s Court:
On 27 April 2006, the Children’s Court formally farewelled its inaugural President before
a Court packed with well wishers, practitioners family and friends.
From the Bar table there were warm, humourous, even touching, wishes extended by
Mr Bill O’Shea, Immediate Past-President of the Law Institute of Victoria; Superintendent
E. Dunne, from Victorian Police Prosecutions; and Ms Gill Callister, Executive Director,
Office of Children, Department of Human Services.
On behalf of the Victorian Bar, its Chairman Kate McMillian S.C., gave the following
address:
Judge Jennifer Coate giving her farewell speech.
I
appear on behalf of the Victorian Bar
to pay tribute to Your Honour’s distinguished service as the First President
of the Children’s Court of Victoria. The
Children’s Court celebrates the centenary
of its statute this year. Indeed just last
week Your Honour hosted the launch by
the Attorney-General of the exhibition
now on display to mark that centenary.
That exhibition was assembled with support from the Victorian Law Foundation.
Until June 2000 the Children’s Court
was a division of the Magistrates’ Court.
The Children and Young Persons
(Appointment of President) Act 2000
established this Court as an independent
court. It also provided for the appointment of a President and that the President
should be a judge of the County Court.
Promptly upon passage of that Act Your
Honour was appointed to the County
Court and appointed the First President
of this Court. However, Your Honour’s
leadership of this Court significantly
predates your appointment as President.
Since December 1995 you had been the
Senior Magistrate of the Children’s Court,
and in September 1996 you also became
a Deputy Chief Magistrate. Thus Your
Honour has been the effective head of this
court for more than ten years.
Many of Your Honour’s important
committee appointments began in 1996
and 1997. To name a few: Chair of the
Health Services for Abused Victorian
Children Advisory Group; Chair of
the Anglicare Steering Committee for
Group Conferencing Restorative Justice;
Member of the Intercourt Family Violence
Committee Protocols Committee chaired
by Justice Brown; Member of the South
Pacific Council of Children’s and Youth
Courts; Member of the Australian and
New Zealand Youth and Children’s Court
Standing Committee; and Council and
Board Member of the Australian Institute
of Judicial Administration.
Both within Australia and internationally Your Honour has been an influential
and effective leader. You headed the very
successful 2002 International Congress
on Children and Youth Rights held in
Melbourne. Inactivity on the part of the
Central Committee of the International
37
Association of Juvenile and Family Court
Judges and Magistrates had raised a real
threat that the 2002 Congress would have
to be postponed. Your Honour made the
decision locally that, and I quote, “We
must and we shall continue.” You did,
and your local leadership made the event
go ahead and in the words of your New
Zealand counterpart His Honour Judge
Beecroft you “made it a raging success”.
Judge Beecroft — the Principal Youth
Court Judge of New Zealand — had hoped
to be present today and he has asked
me to pass on his congratulations and
best wishes to you. There are very few
Australians that a New Zealander would
publicly acknowledge looking up to and
this is not a reference to Your Honour’s
height, but Judge Beecroft speaks of
your gracious personality, your principled
approach to every issue, your unflagging
enthusiasm and your dedication to youth
and youth justice principles.
His Honour said that you will be sorely
missed on the committee and Council of
Australia New Zealand and South Pacific
Children’s and Youth Courts. He said
that Your Honour’s role in the development of those courts was pivotal. The
Victorian Children’s Court has the best
record of any Australian Children’s Court
in relation to keeping children out of
detention, whether on remand or under
sentence and in a variety of supportive,
non-custodial dispositions. Your Honour
has consolidated and built on that record.
Your Honour has worked tirelessly in the
development of the new Act scheduled
to come into operation in October — the
Children Youth and Families Act 2005.
This exhaustive 542-page statute will
repeal and replace the current 1989 Act.
Your Honour has also played a key role
in developing group conferencing in the
criminal jurisdiction. The group conferencing program was introduced in 1995,
utilising a general discretion under the
1989 Act. The program was under the auspices of Anglicare, hence the significance
of Your Honour’s ten-year chairmanship
since 1996 of the Anglicare Steering
Committee that advised and assisted the
Department of Human Services in developing group conferencing. In 2001 and
2002, group conferencing was expanded
in Melbourne and extended to Gippsland
and Hume on a three-year pilot. When
the new Act comes into operation, group
counselling will be available throughout Melbourne and the whole of rural
Victoria.
In the child protection jurisdiction
Your Honour worked closely with the
38
Department of Human Services to ensure
the continued independence of the Court
and the retention in the new Act of a legal
process in which the family can present
its position to the Court. Your Honour has
also presided over the establishment and
commencement of the Koori Children’s
Court in September 2005. In this Your
Honour drew on the knowledge and experience of your successor Judge Grant in
his capacity as the supervising magistrate
for Koori Courts. You, yourself, were the
first to participate as the Children’s Court
Officer in the Koori Children’s Court.
Since 2001 Your Honour has been a
part time Commissioner of the Victorian
Law Reform Commission. Justice Neave
has praised your contributions to the
Commission’s work in a variety of areas
including but going beyond children’s
issues, your precise, measured and careful
approach and your very practical insights
into the on-the-ground implications and
not always obvious consequences of proposed reforms.
Your Honour’s red, striped and brightcoloured hose is legendary. On one occasion the solemnity of the court was broken
by a loud exclamation from a small child,
“Look Mum, it’s Mary Poppins.” Your imaginative awards at the Annual Children’s
Court Christmas party, said to be the best
in the legal precinct, will also be missed:
awards such as to an advocate when,
after considerable delay, he attended
your court, he won the “I heard the page
but ignored it” award. The advocate who
gave the most creative excuse as to why I
shouldn’t have to walk from Queen Street
where pre-hearing conferences were held
to South Melbourne for consequential
directions won the “Fashionable but
uncomfortable shoes” award.
Your Honour has been a firm, but
fair and compassionate Children’s Court
Judge. One counsel recalls a child protection case in which she represented
parents who, at the end of the day, lost
custody of their child. Your Honour
explained the reasons at length and in
terms the parents could understand. You
expressed the hope that they might perhaps one day be in the situation to resume
their role as custodial parents.
Yesterday Your Honour sat on the
County Court Bench at the swearing
in and welcoming of His Honour Judge
Grant. Today Judge Grant is sitting with
Your Honour in this court. The association with Judge Grant goes back some 14
years to March 1992. Your Honour’s first
assignment as a magistrate was to sit with
Magistrate Grant as he then was. There is
a pleasing symmetry in Judge Grant now
sitting with you at your farewell and being
introduced by you to the Court that you
now hand over to him.
In his remarks last week at the launch
of the centenary exhibition, the AttorneyGeneral described Your Honour as, and
I quote, “An exemplary First President
who had brought diligence, integrity and
imagination to the task.” The Victorian
Bar agrees wholeheartedly with the
Attorney-General’s description of Your
Honour. In addition we would say, like all
of the audience here today, that we hold
Your Honour in very high regard.
On behalf of the Bar I thank you for
your unparalleled service as the First
President of the Children’s Court of
Victoria and I wish Your Honour well in
your full-time and permanent service on
the County Court.
In her response to the well wishes, Judge
Coate reflected on her term as President
this way:
Thank you so much for your generous
words. I have contemplated this moment
for a long time now.
On Sunday April 30 my fourth consecutive appointment as head of the Children’s
Court either as Senior Magistrate or
President will end. I came to the Children’s
Court for three years, nearly eleven years
ago. Although there never seems like a
right moment to go, this is the one I have
chosen.
With the transition of the age increase
[to the criminal jurisdiction of the Court]
well underway, the Koori Children’s Court
up and running, a new model of ADR legislated for and a new Act on the horizon,
the Court is about to start a new phase in
its development, in its second century on
earth. 2006, as many of you would have
heard last Friday, marks the first one hundred years of the Court. The Court has
come of age and I hope you agree with me
that it is wearing its age well.
Today, you have heard much about
what I have done for the Court. But I see
it differently. I see what being part of this
Court has done for me over the past decade, how it has enriched me so deeply and
personally in so many ways.
THE PIONEERING SPIRIT
Both before and during my years here,
I have learnt much from and about the
pioneering spirit of the judiciary who
have worked in this Court. As some of
you would have heard me say last Friday
at the centenary of the Children’s Court,
Judge Jennifer Coate and sitting magistrates of the Children’s Court.
Kate McMillan S.C.
Ms Gill Callister makes a farewell
speech as representative of the
Department of Human Services.
Victoria Police Chief Commissioner
Christine Nixon (centre) and invitees
listening to Judge Jennifer Coate’s
farewell speech.
there is much to learn from these first one
hundred years.
“One can see many mistakes, some
misguided views, some inappropriate laws
and some grave errors of policy dotted
throughout the history of the Court.
But there is an underlying theme in the
judicial history of this Court of the striv-
Superintendent Emmett Dunne makes
a farewell speech on behalf of the
Prosecution.
ing of many passionate and committed
judicial members to use the law and their
statutory powers to achieve better lives
for children and young people who have
come before the courts over the decades.
I pay my respects to them, past present
and future.
I have come to understand what Isaac
Newton meant when he said: “If I have
seen a little further, it is by standing on
the shoulders of giants.”
Greg Levine is one such giant for me.
It was Greg’s courage and perseverance
when he was Senior Magistrate before I
came to the Court which had a powerful
influence on the Government’s decision to
build a new court.
He refused to be silenced about the
need for a new building and the proper
resourcing of it and that’s what we
achieved.
Another giant in this Court has been
and remains Peter Power. He has brought
to life a wish of mine that we had no way
Mr. Bill O’Shea makes a farewell
speech on behalf of the Law Institute
of Victoria.
of achieving without him. He is simply
the first and last word on the law relating
to the Children’s Court. His constantly
updated 12 chapters of research materials
on the website are second to none.
HOPE
Here, I have learned much more about
hope than I had ever understood. I have
seen the hope of the committed advocates
in this jurisdiction strive to get the results
their clients are seeking even when the
odds are poor. (And so is the pay.)
The hope of juvenile justice and child
protection workers who try to get the
formula right to address the reasons children and young people are brought to the
court.
The hope in all of us who are the decision makers at this court that the decision
39
we make is the right one for that infant,
child or young person.
That hope is always kept alive because
of what is at stake — the ultimate hope
of a better future for an infant, child or
young person.
INSPIRATION
I have been inspired by the work and
dedication of my colleagues. I have seen
the thought, the analysis, the anxiety and
the hard work that goes into their decision making in this Court. I have been
inspired by and constantly found new
energy through their cooperation and
good humour.
I have been inspired by the dedication
of judicial colleagues across Australia and
the South Pacific and New Zealand working in this same area and in many jurisdictions across the South Pacific, many with
nothing else to work with in the way of
resources but energy and a vision of a
better system.
I have been inspired by the Elders
and respected members of the Aboriginal
Community who have been prepared
to sit with us, despite the history that
passes between us, to try and find ways to
improve the sentencing responses of this
Court for young Koori people.
I have been inspired by many of the
professionals that work in and around the
jurisdiction, the lawyers, the social workers, the psychologists, the clinic staff led
by their dedicated Clinical Director Dr
Patricia Brown, the police and the police
prosecutors, the pre-hearing conveners,
the security staff, and the Salvation Army
and the Court Network service.
I have been and remain inspired by the
extraordinary work of people like the foster carers who provide their warmth and
support and care for those children and
young people who need it.
RESPECT
Here, I have learned the real value of
respect, which does not reside in the
judicial title, the judicial gown and most
definitely not the judicial wig.
I have learnt this in many ways and
from many people but the most profound
understanding of respect and its importance, I have gained from working with
the Elders and respected members of
the Aboriginal community in the Koori
Children’s Court. By listening to and
watching them, it has enriched the meaning and importance of the word “respect“
for me.
LEADERSHIP
Here, I have learned that leadership itself
achieves nothing without the diligence
and support and selflessness of those
one hopes to lead. I have experienced
that diligence and support not only
from my colleagues but from the Court
staff.
The Principal Registrar Godfrey Cabral
and our current Principal Registrar
Leanne de Morton have my gratitude and
admiration. It is their work and professionalism and demeanour that are the
daily face of the Court.
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40
Any who know Leanne would describe
her as not only the consummate professional, but simply unflappable, and so she
is.
Even the chap that came to the registry
counter seeking to rely on the Magna Carta,
and requesting the court copy so he could
refer to it, did not realize that our Leanne
was having a little trouble understanding
the true nature of his request. Ultimately,
in endeavoring to both understand his
request and accommodate it, she decided
he must be looking for a protective worker
called Maggie Carter, and so paged Maggie
Carter to the upstairs registry counter. She
believed him to be looking for a protective
worker called Maggie Carter, she duly
paged her to the counter.
The Court staff and the Court coordinator have been and remain the engine room
of any court. During my time here I have
been blessed with such fine coordinators
as Sue Higgs and now Angela Carney. We
simply would not function without our
clerks and without our support staff here
at Melbourne, Russell O’Callaghan and
Janine Williams.
I have learned that no President can
lead a Children’s Court without people like
Janet Matthew and David Whelan. Some of
you have heard me speak of them often. It
is because it is not possible to say enough
about them. They have been much more to
me than professional staff over the years,
but have proven to be the source of friendship, support and humour.
There are many people in many government departments who have given our
court guidance and support over the years
and responded to many requests for assistance in many ways. I cannot possibly mention them all, but I do want to acknowledge
John Griffin, the Executive Director of
Courts, who has been nothing short of our
constant champion, and Mick Francis who
has done his best to look after us.
Some of my personal development and
enrichment here has come in some surprising guises.
PLEADINGS
It may come as a surprise to you to hear
that I have also learnt something about
pleadings in this Court. It may come as a
surprise to you, because we are not a court
of pleadings.
I reminded Ross Nankivell recently that
he taught me pleadings at Law School.
I also reminded him, in case he didn’t
remember, that I found it hard. I struggled
to achieve the elegant simplicity Ross tried
to instil in us.
And now it has been found. In the
recently introduced adjournment forms,
some of you will know there is a section
which requires the applicant to fill in the
reason for an adjournment. This inspired
applicant wrote: “Seeking an adjournment.”
LOGIC
I have learnt much about logic.
No more shall I struggle with “All men
are mortal, Socrates is a man and therefore he is mortal.”
We now have the post-modern version.
Thanks to one of my vigilant colleagues
who picked up this piece of logic when
enquiring of someone who was meant to
be at court at 9.30 am, but did not arrive
until 11am what the reason was for being
late and received the answer, I thought
court started at 10.00!
CLARITY OF EXPRESSION
I have learnt much about the need for
clarity of expression in this Court and
indeed the legislation directs us to do our
best to ensure that we are understood by
all in the courtroom.
I knew I had most certainly failed
the day I was asking questions of a legal
practitioner, in an endeavour to establish
something of the history of the case and
the child’s parentage, and he asked (albeit
in a slightly hesitant way) “Is Your Honour
concerned that she is the mother of the
child?”
I reassured him that I was confident
that I was not.
So you can see my life has been
immeasurably enriched by this past decade.
The longer I stay here, the less I feel I
know and the more I feel there is to do, so
best I go now before I realize that I know
nothing and have only just begun to do
what is needed.
My leaving has been made so much
easier by the announcement of Judge
Paul Grant as the new President of the
Court. Judge Grant has been a valued
friend and a much esteemed colleague for
many years.
He has enjoyed a distinguished legal
career on the Bench in the Magistrates
Court and I have every confidence that
he will not only maintain but grow in that
reputation as President of the Children’s
Court. I am delighted that he has chosen
to come onto this track and take over the
running here.
There remains one task left for me to
complete.
You have heard much of the race I
have been running for the last decade.
The crucial moment has arrived when the
baton change must happen for the next
President to commence the next decade.
Go your hardest, Mr President.
VICTORIA LAW FOUNDATION
Legal Reporting Awards
2006
Reporting Award for Judge’s Daughter
T
HESE awards were presented
by The Honourable Chief Justice
Warren AC on Wednesday 17 May
2006. At the presentation, the Chairman
of the Communications Committee of
the Supreme Court, the Honourable
Justice Eames said:
Informed, balanced, journalism — like
sound, fair, decision-making by judges —
requires experience, wisdom and courage.
Given the time constraints, the uncertainties, and the pressures that attend both
tasks, errors will be made from time to
time. On both sides, however, error ought
not likely be regarded as proof of a lack of
integrity or an absence of conscientiousness.
It is important that we speak frankly
about our differences. There is a very
important public interest in open and
accountable justice and accurate reporting in the business of the courts is critical
to those principles. As judges, we should
not allow self-interest, self-importance
or undue sensitivity to criticism to stand
in the way of the media fulfilling its role.
But, equally, the media need to understand the principles that guide judges
when imposing restrictions, at times, on
their work.
These awards present an opportunity
for the legal profession and the judiciary
to acknowledge and reward good journalism in the difficult and specialist field of
legal reporting.
The award for best report on
radio was awarded to Catherine
Harper, daughter of the Honourable
Justice Harper. Of that award Eames
JA said:
The judges noted that this year there was
a heartening increase in the number of
entries in this category, with some fascinating matters discussed. It proved to be
a hard task to select the winner, but the
judges were very impressed with the discussion of an Australian citizen who was
motivated to save lives, and was caught
up in what some saw an inappropriate
application of the law on people smuggling. It showed how cautious one must
be about pre-judging cases, especially
when they involved an alleged offence
which has strong public disapproval.
Congratulations to Catherine Harper of
SBS radio, for her program “Hoa Nguyen
— a People Smuggler and Proud of It”.
The judges thought this was a beautiful
and dramatically told story.
41
News and Views
A Tribute to the Late His
Honour Bill Morgan-Payler
By His Honour The Chief Judge Rozenes of the County Court of Victoria
on Thursday 22 June 2006
W
E are here this afternoon to pay
tribute to the memory of the
late Judge Bill Morgan-Payler; to
express to his wife, Tina, and his sons Joe
and Liam, our sincere sympathy and sorrow; and to acknowledge the debt which
this Court and the Victorian community at
large owe to Bill for the dedicated service
which he rendered to the law as defence
counsel, prosecutor, and finally as a Judge
of this Court.
I desire to acknowledge the presence on the Bench with us today of the
Honourable the President of the Court
of Appeal and acting Chief Justice,
Justice Chris Maxwell, who represents
the Justices of the Supreme Court.
I acknowledge the presence in court
also of Ms Pamela Tate S.C., SolicitorGeneral for Victoria (representing the
Government); Dr John Lynch, Crown
Counsel; Mr Paul Coghlan QC, Director
of Public Prosecutions for Victoria; Mr
Mark Pedley, Deputy Director of Public
Prosecutions for the Commonwealth;
Ms Kate McMillan S.C., Chairman of the
Victorian Bar Council; Ms Elissa Watson,
representing the Law Institute of Victoria;
and Ms Penny Armytage, Secretary of the
Department of Justice.
Bill Morgan-Payler was born on 23 May
1946. He grew up on Phillip Island, where
his parents had a farm. His grandfather
was an Archdeacon in the Church of
England who had come to Australia seeking a cure for tuberculosis.
Bill matriculated in 1963, having
been educated as a boarder at Caulfield
Grammar School, and was in the first
intake at the new Monash University Law
School.
Amongst his colleagues that year
were Judge Julian Leckie and Senior
Crown Prosecutors John McArdle QC
and Geoffrey Horgan SC, who, together
42
His Honour Bill Morgan-Payler
with his dear fishing mate John Philbrick,
provided much of the information for this
tribute.
According to Geoffrey Horgan, Bill
led a sort of double life at the university,
combining membership of the Labor Club
with friendships among the sports coats
and ties of the Law School. Although Bill
was an agnostic, or a “lapsed Anglican” as
Geoff Flatman once put it, and of radical
political disposition, he had what Geoff
Horgan described as a patrician style
about him. Notwithstanding that, he was,
however, to retain his concern for the
underprivileged all his life.
He worked as a research assistant in
the Economics Department the year that
he graduated, and in 1970 taught taxation
at what was then known as the Prahran
Institute of Technology.
He met his lovely wife, Tina, when she
was just 16. They married when Bill was
— as they say — still tidying up a subject
or two at the end of his course. She was
devoted to him, and supported Bill in everything he did. She was by his side to the
very end.
He did his articles with John Zagouris
in 1971, signed the Bar Roll in 1974, reading with John Walker, and then resigned
in 1977 to work for the Aboriginal Legal
Service first in Darwin and then in
Victoria, returning to the Bar in 1981.
He had five readers: Reg Keating, Steve
Russell, John Lavery, Carolyn Burnside
and Jane Gibson.
He practised for the most part as
defence counsel, and it was a great compliment to him when the Government
appointed him together with the late
Geoff Flatman and Paul Coghlan to
their respective positions at the newly
revamped ODPP in 1994.
Bill became the Chief Crown
Prosecutor in 2002 when Geoff Flatman
was appointed to the Supreme Court and
Paul Coghlan was appointed DPP. To say
that he was highly regarded as a prosecutor is to greatly understate his forensic
skills and impeccable courtroom demeanour and the complete fairness with which
he discharged his prosecutorial duties. He
prosecuted in the most significant cases in
the Supreme Court such as Domaszewicz
and Lewis, to mention just two, and
argued important cases in the High Court
such as Thompson (1999), Palmer
(1998) and Pavic (1998).
Trial Judges in the Supreme Court
relished the prospect of him appearing
for the Crown. As one remarked, he was
the “prosecutor of choice” — able to focus
on complex areas of law like few others
could.
He was much admired by those who
were opposed to him and who appeared
with him. He was universally acknowledged as an understated but formidable
advocate, always compassionate and
always scrupulously fair. His very fine
personal qualities won him the affection
and friendship of his many colleagues in
the profession.
In 1977 Bill went to join Dyson HoreLacey QC working in Darwin for the
Northern Australian Aboriginal Legal Aid
Service. They were colloquially known
as Lacey & Morgan. At that time Richard
Coates, now the Northern Territory DPP,
and Judge Roy Punshon were working in
Alice Springs for the Central Australian
Aboriginal Legal Aid Service. Richard
reports — and this is not meant to be a
slight on the other two, or for that matter
against the many other wonderful members of the Victorian Bar who worked in
the Territory — that former Justice John
Nader always claimed that Bill was the
best advocate to appear in the Territory.
This must have been so, because in the
Queen v Bird Bill he persuaded Nader J
to fully suspend the sentence of a young
Aboriginal man who had embezzled over
half a million dollars. Unfortunately the
CCA didn’t agree.
Richard Coates reminds us of other
notable cases such as Queen v Forscutt,
where Bill secured an insanity verdict
for an accused who shot dead his nextdoor neighbour for mowing the lawn on
a Sunday morning, and Queen v Breedon
(aka the Parap butcher), where he gained
a strong recommendation for mercy from
the convicting jury, although the accused
had dismembered the body of his victim and scattered the parts around the
NT. The case was subsequently won on
appeal, with the court holding that the NT
Criminal Code’s felony murder provisions
were to no effect.
Upon his appointment to this Court,
Bill, in his usual modest (and may I record
novel) way, eschewed a welcome, and so
his numerous talents and exploits went
unheralded in this court.
The Bar News, however, recorded his
arrival as a Judge in the same edition as it
recorded the retirement (premature as it
turned out to be) of Judge Michael Kelly.
It was a most apt juxtaposition. It was as if
the mantle had been passed. The author1
of the article noted that the County Court
had gained a Judge of “unbounded talent
and experience”, and predicted that Bill
would, over the years, greatly enhance
the justice system in Victoria.
He brought to this Court the very
broadest knowledge of criminal law and
procedure, together with a unique experience in the conduct of difficult criminal
trials and appeals.
Many, including the Chief Justice, wondered how it was that he was appointed
to this Court rather than the Supreme
Court. I can only say that we were lucky.
I am sure that all the Judges of this Court
will join with me in acknowledging that he
would, in the fullness of time, have joined
the ranks of the great criminal Judges who
sat in this Court.
Whilst at the Court he worked with
great diligence and energy, even after he
He brought to this
Court the very broadest
knowledge of criminal law
and procedure, together
with a unique experience
in the conduct of difficult
criminal trials and
appeals.
was diagnosed with cancer and through
his battle with that disease. He fought to
the very end, refusing to be beaten. His
example of conscientious service, and his
preparedness to do his share and often
more — even though he was clearly in
great difficulties — set new standards of
behaviour for us all.
Bill’s rise to high office was not confined to the law. He became a reluctant
president of the Fly Fishing Association of
Victoria. He and John Philbrick and others
would make trips to Tasmania, where they
had some sort of rights to the occupation
of a derelict hut adjacent to a near-perfect
trout stream. Bill kept a photo of the hut
on his desk. He loved equally “Misery
Farm”, his farm amongst the clouds at
the back of Apollo Bay, and he loved the
Victorian high country.
John Philbrick reported that — and
here I quote in full so as to do justice to
both of them:
The contemplative world of fly fishing
suited Bill’s personality, and gave him an
opportunity to escape from the pressures of
his professional life. He loved his fly fishing.
Not just catching trout, although he caught
his share. He loved his trips into the Aus-
tralian bush. Trout streams are invariably
located in beautiful and secluded places.
The aesthetics of fly fishing appealed to
him. He appreciated quality fishing literature and tackle, and amassed a large library
of fishing books and a startling number
of rods, reels and other sundry items of
angling paraphernalia. And at the end of
the day he enjoyed a drink and a hearty
meal with his fellow anglers. Above all, Bill
derived great pleasure out of fishing with
his sons, Joe and Liam.
His great love was fishing small tributary
streams which were neglected by most
anglers. Late in March this year he made
what he knew was almost certainly his last
trip to Tasmania. He had three days in which
to fish. The first day he fished sitting in a
swivel chair at the front of a raft skippered
by his fishing companion, John Philbrick. At
one stage he was reckless enough to stand
up to cast at the same time as Philbrick
suddenly turned the raft, causing him to
teeter precariously on the edge and almost
fall overboard. That evening, when reflecting on this near miss over a drink, he dryly
observed that had he fallen overboard, an
appropriate obituary notice in the Owen
Dixon Chambers lift would have been, “It is
with somewhat less regret than normal that
we announce that Judge Morgan-Payler
was drowned yesterday by Philbrick at
Brumby’s Creek Weir in Tasmania.”
He was fishless after the first day, and
his strength was ebbing. By the second
day he was losing hope. It was late in the
season, and the weather was threatening to
deteriorate. The second day he drove to fish
the North Esk River. Something made him
stop at a bridge over a tiny tributary, and
he made what turned out to be an inspired
decision to fish this creek. The angling gods
must have been smiling on Bill because a
short time later he hooked and landed the
first of a number of beautiful chunky trout.
A famous angling writer once wrote:
“The man of rods and lines and hooks
Is always one-and-twenty.”
He was right. Bill’s worries were forgotten, his face lit up with a look of pure joy,
and he was a boy again. For the next few
hours he was in his wonderful angling paradise. He spent the rest of the day having the
most wonderful, unhurried fishing on this
lovely little creek. When he reached the
final tiny pool by the bridge where he had
left his car, he made what proved to be his
last cast. His fly went under, and he was fast
into a large fish which he duly landed. The
following morning he was totally exhausted
but content, for he had enjoyed what he
later said was the perfect angling day.
43
News and Views/A Bit Abour Words
Bill served as a Councillor and VicePresident of the Victorian Fly Fishers’
Association. In 2004 he was elected as
President, a position he held until his death.
He bravely continued to attend meetings
until the last month, as he did with his
duties at the Court.
Judge Meryl Sexton reminded me
of the two common themes that have
emerged from people’s comments about
Bill. One was his commitment to his work.
The other was his sense of humour. These
two qualities were captured in a scene
only a few weeks before his death.
Judge Meryl Sexton
reminded me of the two
common themes that
have emerged from
people’s comments
about Bill. One was his
commitment to his work.
The other was his sense
of humour.
An e-mail had just been circulated to
the whole County Court community telling against the dangers of running in the
County Court corridors: a serious subject
of occupational health and safety for all
staff, but an amusing one as well if you can
picture wigged and gowned Judges racing
up and down the corridors anxious not to
waste valuable court time.
Bill had worked a full day in a trial, and
as he drove through the County Court
basement carpark he paused to speak
to a colleague. Exhausted as he must
have been, he had nevertheless checked
his e-mails, because he admonished the
younger Judge thus: “And remember,
there’s to be no running in the corridors!”
It had obviously struck his funny bone, in
spite of everything.
On behalf of the County Court community I extend to his wife Tina and his sons
Joe and Liam and his family and friends
our deepest condolences, and hope that
they take some comfort from knowing of
the high regard in which Bill was held by
the Court and by the profession.
We will all miss him.
Adjourn the court sine die.
Note
1. David Brustman.
44
Chaps
W
HAT an odd little word this is.
Actually, it is three different
words with the same form.
The first word is a variant of chop:
a chap is “an open fissure or crack in a
surface, made by chopping or splitting”.
It is rarely used like this nowadays. A
related meaning is “a crack in the skin,
descending to the flesh: chiefly caused
by exposure of hands, lips, etc., to frost
or cold wind”. In that sense, it is more
common as the participial chapped lips
or (less commonly) chapped hands. As
a plural, chaps also signifies the jaws of
a person or animal; and by extension the
jaws of a vice. Chappy meant talkative, in
the 17th and 18th centuries. Some time in
the mid 18th century, chaps in this gave
way to chops: “get your chops around
this” sounds like slang but is a very old
usage. Down in the chops is a 19th century colloquialism meaning depressed; to
lick one’s chops is to gloat.
The second meaning of chaps is best
gathered from cowboy movies. When they
were popular in the 1950s and 1960s, they
often showed chaps wearing chaps, which
are made of leather with fronts of dogskin
with the hair on. In this context, chaps is
an abbreviation of chaparreras, which in
turn comes from chaparral, the dense,
thorny scrub common in Mexico and
Texas, through which the cowboy heroes
often rode. Chaparral comes from the
Spanish chapa, the scrub oak. Chaps
were worn over the pants to protect the
legs while riding a horse.
Neither of these meanings springs to
mind when someone refers to chaps these
days. The commonest current meaning
of chaps is caught by Oscar Wilde in A
Woman of No Importance: “One must
have some occupation nowadays. If I
hadn’t my debts I shouldn’t have anything
to think about. All the chaps I know are
in debt.”
Oscar Wilde wrote A Woman of No
Importance in 1893. His use of chaps,
etymologically speaking, was not modern even then. As a casual reference to
another man, it had been in use since
about 1750. Wilde’s other use of chaps
was not modern either, but he was caught
at it, and that was a serious mistake. In
1895 he was sentenced to two years’ hard
labour.
Chap is an abbreviation of chapman,
a person whose business is buying and
selling, a merchant. The abbreviated
form emerged in about 1600. As the
OED wryly notes, it “… seems to have
come into vulgar use in the end of the
16th c. but it is rare in books, even in the
dramatists, before 1700.” Apparently the
dramatists then, as in Wilde’s time, were
a bit racy.
The etymology of chapman shows that
it is related to the German Kaufman, and
the Dutch Koopman. (In keeping with
the early fashion of artisans and traders
taking their surname from their occupation, Chapman, Kaufman and Koopman
are common surnames). Chap was a barter or bargain from the 15th to the 17th
century.
For a century or two, chap was also
a vulgar reference to a customer, but it
gradually lost the commercial connotation. Dr Todd’s edition (1818) of Johnson
recognises this usage, but notes that “it
usually designates a person of whom a
contemptuous opinion is entertained”.
(It could be that the element of contempt
mirrored the attitude of the English upper
classes to those who were “in trade”
— an attidude which sharpened as the
industrial age generated vast wealth for
some chaps but not for most gentlemen.)
Interestingly, the use of chap mirrors
the use of customer outside its original
commercial setting. Until the 1950s it was
common to hear someone referred to as
an odd customer or a queer customer,
where chap would have been equally
appropriate.
Customer was generally a guarded
expression, and chap was at first; but
by the time Wilde wrote A Woman of
No Importance, chap had largely lost
its pejorative edge: the sense is friendly
rather than scornful. When he used it in
Picture of Dorian Gray it is sympathetic
and affectionate: “The poor chap was
killed in a duel at Spa a few months after
the marriage”.
The Old English form of chapman was
céapmann. It holds the clue to another
mercantile connection: a céap was a
market, and also a price, barter, or merchandise. It is recorded in this sense since
1000 AD. In its sense as a market, it is still
found in place-names like Eastcheap and
Cheapside. In the same sense, it led to
constructions such as good cheap (early
14th century) i.e. a good market, meaning
(from a buyer’s perspective) that prices
were low. The equivalent construction
dear cheap was also common, and meant
a bad market, or a time of shortage; it now
looks like an oxymoron.
By the 16th century, good cheap was
a quasi-adjective: “He marvelled at how
it was possible for so much victual to be
found in the town and so good cheap…”
Marlowe Doctor Faustus (1588).
Likewise in Henry IV, Part I (1598)
Falstaff says: “Thou hast saved me a thousand marks in links and torches, walking
with thee in the night betwixt tavern
and tavern; but the sack that thou hast
drunk me would have bought me lights
as good cheap at the dearest chandler’s
in Europe.”
This usage led to the use of cheap
by itself as an adjective meaning inexpensive. This was rare before the 16th
century, but the transition seems to have
been completed early in the 17th century.
It is an interesting phenomenon: cheap
was a noun, meaning market, etc. for at
least 500 years and then in the course of
a century it switched to being an adjective
meaning inexpensive. Cheap is now used
only as an adjective. It can be neutral, or
have pejoriative overtones: it can suggest
good value (cheap price) or low worth
(cheap victory, and cheap shot).
Chap is now a bit toffy — it has a
faded air of affectation about it. Bloke is
matey. Bloke is much newer than chap:
the OED’s first quotation dates from 1851,
when Henry Mayhew recorded London
street talk. For the next 70 years, it was
used hesitantly by authors, because of its
colloquial origins. Despite this tentative
start, bloke has now effectively replaced
chap, at least in Australian speech.
Interestingly, unfairly, neither chap nor
bloke can refer to a woman. Occasionally
the jocular coinage chapette is heard, but
it is not a real word and does not look like
suriviving to the point of recognition in a
dictionary. Not in the sense of a female
chap, at least. The online Urban Dictionary
recognises chapette, but defines it as “a
mamon; one who pretends, and acts big
shit; one who is full of shit.”
Just in case this sense of it catches on, it
is probably best not to refer to a woman as
a chapette. The danger is obviously unrecognised by Chelsea, whose website notes:
“So what do you all think about this word
‘chapette’ I made it up and my friend
Ashtyn made fun of me for it …for everyone who dosent (sic) know what a
chapette is it is a girl kinda like the word
dudette but better…”
Well, I don’t think she was the first to
coin it, but her intentions are good. And
she is not quite accurate about dudette;
it does not exist either. Surprisingly, however, dude admits two feminine forms.
So even if you can’t use chapette and
dudette does not exist, you can choose
from dudess and dudine. Although these
words are recognised by OED, I suspect
that they will remain in the obscure back
rooms of language.
Just as chap drifted from vulgar to
affected, bloke is slowly beginning to look
a little dated as guy and dude weasel
their way into the Australian English.
Dude is nearly as old as bloke, but is
American rather than British. Originally
it signified a dandy; now it is hip and
classless. Guy is also American in origin,
although influenced by reference to the
effigy of Guy Fawkes, traditionally burned
each 5th November in remembrance of
the Gunpowder Plot. As a neutral reference to a man, it emerged in the 1840s, a
few years before bloke.
It would be strange to refer to a woman
as a guy or a dude, and impossible to
refer to her as a chap or a bloke.
Still, as a general greeting Hey guys is
understood as including women. I suppose
that is some kind of progress, centuries
after the first strange-looking customer
was called a chap.
Julian Burnside
THE
ESSOIGN
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See blackboards for daily specials
Happy hour every Friday night:
5.00–7.00 p.m. Half-price drinks
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45
News and Views
Bar Dinner
Jeffrey L. Sher QC gave the 2006 Bar Dinner address on
3 June at the Essoign, reflecting on his 44 years at the Bar.
At this year’s Bar Dinner the tradition of having the distinguished guests “roasted” by the most junior
silk at the Bar was discontinued. Instead of junior silk, the Bar had as its guest speaker Jeff Sher, one of
the Bar’s most senior and distinguished silks.
His speech was a serious one directed to emphasizing what the Bar is all about and what the role of a
barrister really means. That speech is set out below.
K
Jeff Sher QC.
46
ATE McMillan, honoured guests,
distinguished
guests,
fellow
members of the Bar, and if I have
yet to address you: ladies and gentlemen.
After 44 years of successfully avoiding
making a speech at a Bar function my luck
has well and truly run out.
This is my third speech within the past
12 months.
Nonetheless I welcome this particular
opportunity for there are two messages
I would like to convey: one for the junior
Bar, the other for the whole Bar.
Firstly, let me direct my remarks to the
junior members of the Bar here tonight,
including the younger silks.
I wish to speak to you about
“opportunity” and what may happen to
you as a consequence of signing the Roll
of Counsel.
I believe there is a message for the
junior Bar in my own experience.
It was as a junior silk that a brief came
my way which led to me acting in some
important and interesting cases and for an
exceptional group of clients.
It also brought me into contact with
leading members of the Australian Bar.
To tell you my tale, I need to recount
some legal history.
In 1973 Justice Woodward of the
Federal Court, a member of this Bar, was
appointed by the Whitlam Government
to conduct a commission of inquiry into
Aboriginal land rights in the Northern
Territory.
This followed the failure of the plaintiffs
in the Gove Land Rights case to establish
that Aboriginal native title was recognised
by Australian common law.
Ted Woodward was an inspired choice.
He made recommendations which
resulted in 1976 in the enactment by the
Federal Government of the Aboriginal
Land Rights (Northern Territory) Act.
This Act gave traditional Aboriginal
owners the right to make a claim to
“unalienated crown land” which meant
that land in towns was excluded from the
operation of the Act.
In June 1978 the Larrakia clan made a
claim to an area near Darwin known as the
Cox Peninsula.
Whilst the Cox Peninsula is in
the general vicinity of Darwin it was
inaccessible in the wet other than by boat.
In the dry most of it was a four-hour
drive away.
This claim became known as the Kenbi
Land Claim.
The Northern Territory Government
of the day generally opposed land claims,
certainly those near towns, and sought
to frustrate claims by excluding from
the operation of the Act land near the
four major centres of population in the
territory; namely, Darwin, Alice Springs,
Katherine and Tennant Creek.
The technique used was to make
regulations under the Northern Territory
Town Planning Act providing that certain
areas of land were to be treated as though
they were part of the towns to which they
were adjacent.
Darwin, which before the regulations
came into force had occupied an area of
142 square kilometres, was increased to
4,350 square kilometres, a bigger area
than greater London.
Darwin now included the whole of the
Cox Peninsula.
Katherine at the time of the regulations
was 33 square kilometres.
The regulations increased the area to
4,690 square kilometres — bigger than
Darwin with a tenth of the population.
That was too much for even the
Northern Territory to think they could
get away with so in 1979 they made more
regulations and reduced the area to 650
square kilometres.
In 1979 Justice John Toohey (then
of the Federal Court) acting as the
Aboriginal Land Commissioner conducted
a preliminary hearing to determine
whether the Cox Peninsula was available
for claim.
The Northern Territory government
relied on the regulations to argue that
the land claimed was land in a town and
further argued that the motives of the
administrator could not be called into
question when he made the regulations,
he being the representative of the
crown.
These arguments were upheld.
The ruling was based on dicta in some
earlier High Court decisions.
This ruling meant the end of the Kenbi
Land Claim.
The Northern Land Council, having
already briefed a Queensland silk to act for
the claimants and who had advised that a
challenge to the ruling was bound to fail,
decided to seek a second opinion from a
Victorian barrister.
I’d taken silk about four years earlier,
since when I’d appeared in a few town
planning cases usually concerned with
attempts by Lindsay Fox or Alan Bond
to obtain a planning permit to build a
shopping centre.
I would not have described myself as an
expert in town planning.
But it seems others thought otherwise.
Further, the NLC thought they had a
town planning problem.
Well — they had a problem all right, but
it was not a town planning problem.
It was about the proper interpretation
of the Land Rights Act and administrative
law.
Kate McMillan S.C., Chairman of the Bar Council with the Honourable Clive Tadgell AO, Mick Heeley (Chief Justice
Warren’s husband) and Chief Justice Warren.
47
So when I was briefed to give a second
opinion about a possible challenge to
Justice Toohey’s ruling a twofold mistake
was made, firstly, as to the nature of
the problem and, secondly, as to my
expertise.
However, I seized the moment.
I opined that there was an arguable
basis for prerogative relief in the High
Court and, to my surprise, was then
briefed to seek such relief.
That’s called “putting your mouth
where your money is”.
As the application for an order nisi
for mandamus was listed to be heard in
Sydney, a friend of mine at the Sydney Bar,
Bruce Oslington, was briefed as my junior.
We obtained an order nisi from Sir
Harry Gibbs. It was returnable before the
Full High Court.
The application for an order absolute
was heard in September 1980.
It was the first case heard in the
main courtroom of the new High Court
building.
I must confess that it only dawned on
me on the morning of the case, when I saw
the size of the audience, that this might be
an important case.
There were, of course, a lot of public
servants in the crowd.
Of course they were all at work!!
Jim Thomas QC, leading Pat Keane,
both of the Queensland Bar, appeared for
the Northern Territory.
After argument the court reserved
and a little over a year later granted
mandamus permitting a challenge to the
regulations.
What then followed was a discovery
battle which also ended up in the High
Court.
The NLC sought discovery from the
Northern Territory.
This was unsuccessfully opposed.
When discovery was given, the Northern
Territory claimed legal professional
privilege for most of the documents.
Our response was to assert that the
privilege could not be relied on as what
was sought to be protected fell within the
“crime or fraud” exception.
As you are all barristers and as all
barristers are experts in the laws of
evidence, you will know all about that.
The argument was heard by Justice Bill
Kearney, formerly of Papua New Guinea,
who had succeeded Justice Toohey as the
land commissioner.
Before he ruled, Justice Kearney
inspected some of the contested
documents.
He held that there was prima facie
48
case that the communications with the
Territory’s legal advisers had come into
being as part of a plan to defeat the
land claim and that the privilege could
not be relied on to resist discovery and
inspection.
This decision was then unsuccessfully
appealed to the Full Court of the Federal
Court where Justice Kearney’s decision
was upheld.
There was then an appeal to the High
Court.
The appeal was unsuccessful.
The decision is reported in the CLRS.
It is a leading case on the law of evidence
and discusses whether privilege applies to
communications with government lawyers
and the crime or fraud exception.
The documents then became available
for inspection and what a beautiful
collection of documents they were.
They included a file which some honest
public servant had labelled, “how to defeat
land claims”.
It was not until October 1988 that the
challenge to the regulations came on for
hearing before Justice Olney, (one of
tonight’s honoured guests) who by now
was the Land Commissioner.
As luck would have it I was jammed so
Frank Costigan QC and Ross Howie took
over the brief.
Frank and Ross came back from Darwin
wearing large smiles.
“How did it go?” I asked.
“Pretty well,” said Frank.
He was right, for in December 1988
Justice Olney ruled that the town planning
regulations were not a valid exercise of
power.
As one might have now expected, this
decision was then challenged in the Full
Federal Court.
The challenge failed.
Then application was made for special
leave to appeal to the High Court.
It was refused.
So, by the middle of 1989, the claim
having been made more than a decade
earlier, with four visits to the High Court,
four hearings in the Full Federal Court
and numerous appearances before a
succession of commissioners, the Kenbi
land claim was able to proceed on its
merits.
In the meantime the NLC had decided
to brief me in some other matters; quite a
few in fact.
These included two land claims for the
Jawoyn people.
The first of these was for a place known
to the Aborigines as “Nitmiluk”, based on
the grasshopper dreaming.
It is known to the white community as
the Katherine Gorge.
In the early 1980s together with our
instructing solicitor Robert Blowes, David
Parsons and I travelled to an Aboriginal
reserve, then known as Bamyli, about one
hour out of Katherine.
It ceased to be called Bamyli when a
prominent politician decided he wanted to
have his photograph taken at an Aboriginal
settlement.
So the settlement was renamed
Barunga.
It sounded more Aboriginal.
When we arrived our clients were
assembled under a shelter about the size
of the average courtroom.
This shelter had no sides; just a roof, in
case it rained.
The gathering comprised men, women
and children sitting, standing, some even
lying down, together with a collection of
emaciated dogs which wandered in and
out.
David made the introduction.
“Now listen here, you mob.
“We’re here to talk to you mob about
this land claim business.
“Now this bloke here is that old man
lawyer, Jeff, from down Melbourne way I
told you about.
“He’s been helping that Larrakia mob
up near Darwin.
“He’s here to help you get that country
of yours back from that government
mob.”
I wasn’t too pleased about being
described as an “old man”.
Many of the claimants were as old as, if
not older than me.
How would David describe me now?
David continued, “Now we want to talk
to you about the stories for that big mob
of places you showed Robert and I the last
time we were here.
“So we are going to go to those places
and you can tell us the special stories for
them”.
I had planned to say something after
David’s introduction but whatever it was
that I had planned to say, I was now at a
loss as to how to say it.
David had acted for blackfellas for
years in Alice Springs and knew how to
communicate with them.
I had no idea.
In the absence of anything intelligent
or even intelligible from me, David
explained that we were now going to their
ceremonial and special places and they
would accompany us and tell us about
them.
So this is what we did.
Now don’t get fussed by my reference
to Aborigines as “blackfellas”.
Some may say that such language is
not politically correct, but that is how they
referred to themselves.
“Aborigine” and “Aboriginal” are whitefella words.
In the days which followed we
traversed the Katherine Gorge Park from
the Katherine River to Edith Falls about 70
kilometres away.
We visited many sites.
We drove or walked through the
countryside accompanied by large
numbers of blackfellas, their kids and
often their dogs.
I learnt to drive a four-wheel drive
— well — sort of!!
If you are tempted to use a four-wheel
drive I would advise you not to attempt to
climb a one-in-three gradient other than in
low first gear.
You won’t make it.
We slept out under the stars.
We sat around the camp fire.
We waded through streams often with
water up to our chests.
We got to know our clients.
It was physically demanding but
intellectually and emotionally stimulating.
One of our first visits was to a place
called Jurrangluk which, on being visited,
we were told we had to “touch sweat” on
a particular rock otherwise a snake might
bite you.
Robert, David and I took no chances.
We wiped perspiration from under our
arms and rubbed it on the rock.
That’s what is involved in “touching
sweat”.
These land claims sometimes involved
considerable risk.
On one occasion I was standing under a
rock ledge listening to witnesses explaining
to the commissioner the significance of
some rock art.
We had descended into a beautiful
valley down a 20–30 foot escarpment.
There were a large number of overhangs
which created recesses and caves.
Upon the walls of these caves much
rock art had been painted over the
centuries.
I say “over the centuries” because one
site we visited had been carbon dated as
40,000 years old.
As I stood under an overhang through
which tree roots were growing, I noticed a
rather unusual looking root.
It appeared to have some stripes on it.
I asked Peter Jatbula, one of the
claimants who was standing next to me;
“what’s that Peter?”
He replied, “That’s a cheeky bugger
Jeff.”
Needless to say I then moved from
a position two feet below a poisonous
snake.
We visited some spectacular sites,
including previously unknown ceremonial
bone settings.
These comprised thighbones taken
from a kangaroo from a young man’s first
kill.
They were arranged in circles.
There were a lot of these bones so these
settings must have been very old.
We saw two of these settings, one from
the window of a helicopter as we flew past
a cave on the side of a hill.
To learn about their social
structure, to camp out
with them, to traverse and
learn about their country,
to hear their life histories,
gave me an insight into
my aboriginal clients I
could never have otherwise
gained.
It was an unforgettable
experience.
On another occasion we went to a large
water hole which had been cut off in the
dry leaving its inhabitants to wait there for
the next wet.
On one side of the water hole was a
20–30 foot cliff which a number of us
climbed.
The number included Tom Pauling, one
of the Northern Territory’s counsel.
Tom is a Territorian and has spent most
of his life there.
He told me that the freshwater
crocodiles we saw in this water hole (and
there were at least half a dozen of them)
were the biggest freshwater crocs he’d
ever seen.
Freshwater crocs are alleged to be
harmless.
I wouldn’t have wanted to take a risk
with these beauties because they were
3–4 metres long. They usually grow 1–2
metres.
On another occasion at Leilyn (Edith
Falls), site of Bolong, the rainbow serpent,
which is an indescribably beautiful series
of waterfalls with a large pool at the base
of one of them, I saw a group of blackfellas
part like the Red Sea as a large snake
passed through their midst. Amongst our
clients was Raymond Fordimail who had
been born at the Forty Mile. Hence his
name.
There was Sarah Flora, Rita St George,
Ricky Rance, Samuel Bullfrog, Robert E
Lee, Penny Plumjam and Sandy Barraway
amongst others.
Even some of the whitefellas had
delightful names.
One of the Katherine town councillors
was Jimmy Forscutt.
His name was too much for David who
called him “Jimmy Foreskin”.
In the Kenbi land claim one of the
claimants was named the “Prince of
Wales”. I don’t think he was related!!
To prove that the claimants were
members of a “local descent group”, it was
necessary to establish the genealogy of
each claimant.
To do so we used anthropologists, one
of whom was also a linguist and spoke 14
languages. She had taught herself to speak
Jawoyn.
Learning about their social structure,
camping out with them, traversing and
learning about their country, hearing
their life histories, gave me an insight into
my Aboriginal clients I could never have
otherwise gained.
It was an unforgettable experience.
When we were preparing the Kenbi
claim for a hearing on the merits David
persuaded me that we should accompany
three of our clients into the shark and
crocodile infested Arafura Sea to catch a
turtle. This related to their right to forage.
We set out in a 14-foot aluminium
runabout powered by a 25 hp motor.
Any doubts I had about the sea being
shark infested were dissipated when
something long and dark went hurtling
past our boat at great speed.
When a turtle was found and speared
it had to be got into the boat. This was
accomplished by jumping into the water
and pushing the turtle into the boat.
Needless to say neither David nor I
volunteered for this task.
Two of the blackfellas did so.
I’ve never seen two blackfellas move
as fast as those two did in and out of the
water, apart from Cathy Freeman at the
Sydney Olympics.
It was a considerable distance to
the turtle-hunting grounds so when we
decided to return we were miles from
land.
Meanwhile the wind had come up, so
our journey back to dry land, which took
nearly two hours, was through waves of
about three feet.
49
Michael Thompson SC, Stephen
Estcourt QC and John Gibson.
Lydia Kinda and Magistrate
Sue Blashki.
Judge Leckie and Simon
Cooper.
Reserve Judge Frank Walsh; Bill Stuart; Eileen Stuart, 95, the oldest member of the
Victorian Bar and Acting Judge Dyett.
I still recall some of my thoughts
on this journey back which are largely
unprintable.
But they included: “How in the bloody
hell did I find myself here?”
Aboriginal claimants had a number
of natural enemies, apart from the
Northern Territory Government of the
day.
These natural enemies included
mining companies. Let me tell you of two
interesting incidents that demonstrate how
some mining companies that approached
land claims.
In one claim in which David appeared
as counsel, Peko-Wallsend opposed
a favourable recommendation by the
commissioner because, so it said, within
the land claimed was an important
mineral discovery, the location of which
they refused to disclose because it was
“commercial in confidence”.
In due course, as might have been
expected, a recommendation was made to
the minister in favour of a grant of land.
50
Undaunted,
Peko-Wallsend
made
private representations to the minister
disclosing the location of the mineral
discovery without even notifying the
claimants that these representations were
being made.
The minister gave this representation
short shrift as the location of the discovery
had been deliberately withheld from the
claimants and, more importantly, the
commissioner.
When the minister made his decision,
which was favourable, but before it was
implemented, Peko-Wallsend sought
administrative review from the full Federal
Court.
I was briefed to lead David in the full
court.
Dick Conti appeared for Peko.
Dick was not a man prone to boasting
but he seemed strangely confident.
To our joint amazement Peko were
successful in a majority decision.
So we then appealed to the High
Court.
We felt pretty confident about our
chances on this one.
How little did we know.
To our further amazement, the High
Court rejected the appeal, and in a
leading administrative law case held
that the minister should have taken into
account the material disclosed to him by
Peko.
I have disclosed the name of this
mining company because the case is
reported in the CLR.
You probably would like to know what
then happened.
Well, the minister, as directed by the
High Court, took this secret information
into account and decided to grant the
land anyway.
The second occasion was even more
extraordinary.
The second land claim for the Jawoyn
people involved a number of elderly
claimants.
A mining company, which on this
occasion shall remain nameless, had
Chris Blanden S.C., Tim Donaghey and Mark Dean S.C.
Kerri Judd, Leonie Englefield and Ingrid Braun.
Mark Robins, John Langmead S.C., Glenn McGowan and Michael
Shand QC.
expressed its opposition, and a few days
before the hearing of the claim was to
commence asked the NLC to agree to
an adjournment. They said that they
needed more time to prepare. This,
notwithstanding they had known about
the claim for more than a year and the
date for the hearing had been fixed for
months.
The NLC refused to consent to an
adjournment as a great deal of time,
energy
and
resources
(including
hiring helicopters) had gone into the
preparation.
Further, a number of the senior
traditional owners were very old and
might not still be alive if the hearing was
adjourned for any length of time.
Following the refusal of their request,
the mining company’s lawyers did not
respond.
On the morning of the hearing as we
were about to start, we were surprised
to hear the sound of an approaching
helicopter. It landed nearby.
From it emerged a number of
gentlemen in suits and ties, who had a
shorthand stenographer with them.
One of these gentlemen identified
himself as a partner of a large Melbourne
firm and announced his appearance
for the mining company. He sought an
adjournment.
It was opposed.
After a relatively lengthy argument an
adjournment was refused.
The whole team then packed their bags,
put away their note books, and marched
back to their helicopter which then took
off. They did not stay to contest any part
of the claim although the Commissioner
invited them to do so. So the hearing
proceeded.
At lunchtime, Robert, David and
I discussed what had happened. We
concluded that the event had been
orchestrated, probably to provide a
basis for an injunction application in the
Federal Court in Melbourne.
Melbourne was where the mining
company had its head office and the
solicitors were from a large Melbourne
firm.
We decided that it would be best if
someone who knew the history of the
claim should be in Melbourne to resist any
application.
It was David or me.
David was handling the first lot of the
witnesses so it was me.
So we got on the phone.
Robert dictated an affidavit to his
Darwin office which was then faxed to
the NLC’s Katherine office where it was
sworn.
Either Qantas or Ansett was then
telephoned to book me a late flight to
Melbourne.
Together with Robert’s affidavit and the
exhibits, I took a late flight out of Darwin
back to Melbourne, following a hair-raising
ride from Katherine which normally took
three hours.
I do not recall what time it was when I
got back to Melbourne or whether I even
51
went home, had a shower or even a shave,
but at 10.15 the next morning I was in the
Federal Court.
Our suspicions proved to be well
founded.
Counsel for the mining company
announced his appearance and said he
was seeking an ex parte injunction to stop
a land claim proceeding.
Ex parte indeed!
I announced my appearance, tendered
Robert’s affidavit and gave some evidence
from the Bar table.
(Well, you do that in land claims.)
No one asked to cross-examine me.
I don’t recall who my opponent was.
I wish I did.
But I remember the look on his face
when I announced an appearance.
The application was refused; so I went
back to the Territory.
The land claim proceeded.
In the course of acting for the Northern
Land Council I was briefed in much other
interesting litigation.
This included a challenge to the
agreements made with the Commonwealth
Government pursuant to which the Ranger
Uranium Mine had been established on
Aboriginal land.
The agreements pursuant to which the
Ranger Uranium Mine went ahead were
incredibly complicated.
They must have been drafted by the
obfuscation department of the Crown Law
Office.
Our brief took us to New York to consult
with experts and witnesses who had been
involved in the original negotiations with
the Federal Government.
The Government had been very anxious
for the mine to proceed but wanted the
NLC to consent to it.
The NLC was led at the time by
Galarrwuy Yunupingu — Australian of the
Year in 1978 at the age of 26.
Amongst our instructions from
Galarrwuy were certain instructions
about a fishing trip on which he’d been
accompanied by the then Prime Minister,
Deputy Prime Minister and Minister for
Aboriginal Affairs.
When the boat left shore Galarrwuy was
opposed to the uranium mine, as was the
Northern Land Council.
When it returned he was in favour of it.
Proceedings were issued and I looked
forward to airing our instructions and to
the cross-examination.
I wasn’t going to ask how many fish had
been caught even as a lead-up question.
However, before we got to court the
case was discontinued by the NLC.
52
Richard Attiwill, Justice Kellam, David Martin, Danielle Galvin and David
Brookes.
Stephen Estcourt QC representing the
Australian Bar Association.
We were never told why.
I suspect politics intervened.
To give you an idea of what the
blackfellas were up against from the
Northern Territory Government of the
day, which I am tempted to describe as “a
bunch of cowboys”, let me tell you about
another incident.
When Kakadu National Park was
established on Aboriginal land it was
necessary to create a township.
So Jabiru was established, pursuant to
agreements with the traditional owners.
Because of their concerns about the
effects of alcohol on their people and
a desire to curtail its consumption, the
traditional owners had insisted that
there be no takeaway liquor licences in
Jabiru.
The Northern Territory Government
agreed to this condition.
However, both Kakadu and Jabiru
proved a great tourist success.
So the government decided to grant a
licence for a takeaway liquor outlet.
The NLC got wind of this plan.
I was briefed to advise the traditional
owners what they could do.
We were contemplating an application
in the Northern Territory Supreme Court
for an injunction when a further thought
occurred to us.
Kakadu, being a national park, was
under the control of the National Parks &
Wildlife Commission who were sympathetic
to the traditional owners.
So after the matter was drawn to
their attention they thought fit to make a
regulation banning takeaway liquor outlets
in the national park.
In the course of acting for the NLC I
found myself opposed by many quality
counsel.
They included David Bennett QC, now
the Commonwealth Solicitor-General; Ian
Barker QC, then the Northern Territory
Solicitor-General
and
subsequently
president of the New South Wales Bar
Association; Dick Conti QC, now Justice
Conti of the Federal Court; Jim Thomas
QC, who was subsequently appointed to
the Queensland Supreme Court and then
to the Court of Appeal; and Pat Keane who
became the Queensland Solicitor-General.
Another Queenslander, Bill McMillan,
appeared for the Katherine Town Council
in the Katherine Gorge Land Claim.
Bill had been involved in some litigation
for Vietnam veterans concerning the effect
on them of the sprays used by US Forces
to defoliate the jungle.
Within seconds of learning this
interesting fact, David had nicknamed Bill
“Agent Orange”.
I’ve also mentioned Tom Pauling, now
Michelle Florenini, Jack Rush QC, Kate McMillan S.C. and Chief Justice Gleeson.
the Solicitor-General for the Northern
Territory.
These were quality members of the
Australian Bar and a pleasure to appear
against. They brought out the best in us.
One of my prized photos is of the
lawyers in the Katherine Gorge Land Claim
which shows the Commissioner, formerly
from Papua New Guinea, counsel from
three states, Victoria, New South Wales
and Queensland and counsel from the
Territory.
Why have I recounted these experiences
tonight? What is my message to the junior
members of this Bar which I promised to
deliver?
Well it is this: when you sign the Roll you
open the door to a world of opportunity.
What happened to me has happened to
others and could happen to you.
Success at the Bar is not a matter of
luck — it requires hard work. But the
opportunity for success can be a matter of
luck. When it occurs — seize the day!
This brings me to my second message.
David Parsons and I are not the
only members of this Bar to appear for
Aboriginal land claimants in the Northern
Territory.
Ross Howie (an excellent recent
appointment), Ian Gray (now the Chief
Magistrate), Frank Costigan QC, Anthony
Young and Tom Keely were amongst
others who undertook this work.
The late Ted Laurie QC came out of
retirement to do the very first land claim.
For the Central Land Council, the late
Ron Castan QC and Bryan Keon-Cohen
frequently gave advice and appeared.
Ron Castan, Ross Howie and Bryan
Keon-Cohen and others have also acted
for other land councils and Aborigines
throughout Australia.
It was in that role that Ron Castan
and Bryan Keon-Cohen formulated the
argument for Eddie Mabo in his case
against the State of Queensland.
When the history of the High Court is
written, it is my respectful opinion that
Mabo v The State of Queensland will
be regarded as one of its most important
decisions.
In the absence of an apology from
our current Prime Minister, it probably
constitutes the most valuable contribution
yet made in this country to the concept of
reconciliation. The author of the leading
judgment, Sir Gerard Brennan, is here
tonight.
I mean no disrespect nor do I seek to
diminish the quality or importance of the
many other judgments Sir Gerard has given
in the course of a long and distinguished
judicial career, but it is my opinion that
his judgment in Mabo is as excellent a
judgment as he has ever written.
Contributions made by Victorian
barristers to Aboriginal land rights is
only part of the story. Members of this
Bar have frequently been involved in the
defence and advancement of the rights of
Aborigines in other arenas.
When Geoffrey Eames was appointed
to the Victorian Supreme Court he had not
been around often in recent years.
A number of people asked “who’s
Geoffrey Eames?”
Well they should have asked David
Parsons or me.
Geoff helped establish the Central
Australian Aboriginal Legal Aid Service in
Alice Springs.
He also worked for the Central Land
Council and the Northern Land Council.
I’m told by a source, whose identity
I promised David I would never reveal,
that the reason why Geoff was preferred
for appointment to the Central Australian
Meredith Schilling and Peter Fox.
Aboriginal Legal Aid service was that
the local football team needed a good
ruckman.
Geoff was the tallest applicant.
Geoff worked as senior counsel
for Aborigines in the Maralinga Royal
Commission.
He was senior counsel assisting the
Royal Commission into Aboriginal Deaths
in Custody.
His appointment to the Supreme Court
came as no surprise to those of us who
knew of his work.
And in similar vein, so was the
appointment of another humanitarian,
Frank Vincent.
Frank spent a lot of time in the
Northern Territory doing criminal work for
Aborigines caught up in the tentacles of
the criminal law.
Acquittals of such people were
infrequent before members of this Bar
turned up to defend them.
Frank introduced into some courts
in the Northern Territory such quaint
doctrines as the onus of proof and
reasonable doubt.
He secured acquittals where there had
been few before.
He cross-examined police and other
witnesses who had never been crossexamined before.
I’m told some of them claimed they
enjoyed the experience.
I must tell Frank that witnesses are not
meant to enjoy cross-examination.
For years Frank contributed to assisting
blackfellas in the Northern Territory,
usually pro bono.
But a word of warning; don’t ask Frank
to tell you any of his war stories — you
could be in for a long chat.
Other members of this Bar such
as John Coldrey, Jim Duggan and Bill
53
Morgan-Payler (all now members of the regularly invaded by “refugees” from
judiciary), Dyson Hore-Lacy, Remi van Mexico.
Der Weil and Don McIvor did work for
They can walk across the Rio Grande.
Aborigines who probably would not have
To cross the Indian Ocean on foot is
been represented.
somewhat more difficult, unless you are
There are others. I can’t name them all. Ron Barassi.
Members of the Victorian Bar have
When the Federal Government decided
regularly provided assistance to the that Australia needed protection from
disadvantaged members of our society; unwanted migration and applied the
and fought for worthy causes.
“Pacific Solution”, members of this Bar
Whilst there are far too many occasions were at the forefront in protesting the
to mention in this speech, I do wish to indiscriminate nature of the government’s
mention two recent occurrences.
actions.
We all know that earlier this year the
There is a humanitarian need to deal
Singapore Government
decided to carry out the
death penalty imposed
on a young Asian
Australian.
The undeniable fact
is that he was a drug
smuggler.
In other words, he
was a participant in an
appalling trade.
Whether you believe
his explanation as to
how he came to be a
drug smuggler or not,
he did not deserve to be
executed.
Nobody could have
failed to have been
impressed
by
the
dignified way in which The Bar Dinner crowd networking between courses.
Lex Lasry QC and Julian
McMahon fought for their client.
with true refugees seeking asylum with
Perhaps that was to be expected of both compassion and expedition.
them.
Some thought the Federal GovernIn the forefront of those opposing this ment’s approach failed to provide for true
draconian penalty, which has no place in refugees and a speedy resolution of their
a civilised society, were members of this claims for asylum.
Bar.
Further, incarceration of people in a
Robert Richter QC was in the forefront. South Australian desert or on a remote
Many members of this Bar were Pacific island, disturbed many members
amongst those protesting the death of the community including members of
penalty and holding up the traffic at the this Bar.
corner of Lonsdale and William streets on
There is no doubt that amongst
the day of the execution.
the boat people, including those on
That the protests were not successful is the Tampa, were true refugees whose
not to the point.
human rights appeared to have been
It was a worthy cause and members of sacrificed on the altar of populist
this Bar were there.
expediency.
The other occasion is related to events
In the forefront of members of this Bar
such as the litigation concerning the boat seeking to invoke the rule of law protesting
people detained on the Tampa.
the treatment of these people were Julian
Australia is not alone in experiencing a Burnside QC, Chris Maxwell QC, (now
refugee problem.
Justice Maxwell and one of tonight’s
It is a worldwide problem; ask the honoured guests), Jack Fajgenbaum QC
Spanish who are flooded with refugees and many others.
from Africa.
You may not agree with them but
Ask the French and the Dutch.
what cannot be gainsaid is that it was
The United States of America is appropriate for someone to speak out
54
on behalf of these disadvantaged and
unrepresented people.
That is what those members of this Bar
did; and without fee.
A recent survey conducted by the
Victorian Bar Council disclosed that
last year over 180 members of this Bar
provided in excess of 10,700 hours of pro
bono work worth nearly $4 million for the
members of our community who needed
the assistance of counsel but were unable
to afford it.
These figures come from the answers
to the survey that not all barristers
answered.
The true figures
would be greater.
It is no accident
that many of the
humanitarian counsel
whom I have mentioned
tonight
have
been
appointed to the Bench,
appointments
which
I regard as entirely
appropriate and which
others would go so far as
to say were necessary.
It is said that the
price of freedom is
eternal vigilance.
Who amongst our
society shall be vigilant
if not this Bar?
Today, there is no
doubt that if we wish
to preserve our freedoms and liberties we
need the Victorian Bar.
For that matter we need every Bar in
Australia.
I both support and would encourage
the existence of an Australian Bar.
In truth the Victorian Bar is not much
different from the Bars of other States and
Territories other than perhaps we are just
that little bit better!
The Victorian Bar has a long history of
defending the underdog.
The Victorian Bar has a long history of
upholding human rights.
The Victorian Bar has a long history
of seeking to ensure that the rule of law
applies to all members of the community,
particularly those who have neither the
wherewithal, intelligence, experience or
skill to defend themselves.
We should all be proud of this institution
to which we belong.
I certainly am.
So join with me in a toast.
Let’s toast ourselves — we are entitled
to do so.
I give you: the Victorian Bar.
News and Views
David Hicks and the
Military Commission –
Is Australia Turning its
Back on International Law?
Peter Vickery QC
A
t the request of the Bar News,
this article outlines some of the
findings of a report delivered to
the International Commission of Jurists,
Victorian Section, in June this year. The
full report is posted on the ICJ Australia
website www.icj-aust.org.au.
David Hicks, an Australian citizen, was
captured in November 2001 near Kondoz,
Afghanistan, in the closing days of the
war between the Taliban government of
Afghanistan and the Northern Alliance
supported by the United States. He was
subsequently confined at a US naval base
at Guantanamo Bay on the southeast
corner of Cuba where he remains imprisoned.
He is to be tried by a US Military
Commission for serious crimes which
carry a maximum penalty of life imprisonment. The Military Commission system
was established by order of the President
of the United States shortly after the
attacks of September 11, 2001, without
the approval of Congress. No American
citizen or member of the US armed
forces is subject to this system of trial.
It is reserved exclusively for what the
US Department of Defense describes as
“non-resident aliens with no constitutional rights”.
The United States claims that international human rights and humanitarian
law does not apply to David Hicks and
the other Guantanamo Bay prisoners.
Nor does it recognize that this body of
international law applies to the Military
Commission system it has established
to try them. It takes this position in the
face of having become a signatory to, and
David Hicks
ratifying, the Third Geneva Convention
Relative to the Treatment of Prisoners of
War (the “Geneva Convention”) and the
International Covenant on Civil and
Political Rights 1966 (the “ICCPR”).
The legal black hole it has created for
David Hicks and the other detainees is not
filled by resort to the constitutional rights
provided for in the US Constitution, a
cherished birthright of American citizens,
or any of the complementary domestic
laws of the United States. On the contrary,
excavation of the hole is complete with a
denial of fundamental rights which we are
entitled to expect from a civilized system.
The Military Commission process has
been invented to fill the gap. It is a special system of trial which applies only to
the prisoners held at Guantánamo Bay
and like places. It is a system established
wholly outside the conventional civil and
military court structures of the United
States. The Commission will try not a
single US citizen nor any member of the
US military.
Consider this hypothetical: A citizen
is charged by the police with an offence
of aiding others to attack members of the
police force and destroy items of police
property. The presiding judge who determines the law at the trial is a policeman. A
jury is selected for the trial by the police.
The jury consists entirely of policemen.
The Chief of Police then reviews the
decision of the jury before the decision
becomes final. How could the citizen be
guaranteed a fair trial under these circumstances? Still less, how could such a
system even approach the appearance of
a fair trial?
The system designed to try David
Hicks is starkly similar. Pursuant to the
President’s order, the Military Commission
appointed to hear David Hicks’ case will
consist of a Presiding Officer who is a
judge advocate of the US armed forces
and at least three other military officers.
The Presiding Officer acts as the judge
and the other officers, who have no legal
training, act as the jury. The members
of the Commission are appointed by
Secretary of Defense Donald Rumsfeld,
who also approves the charges prepared
by the Prosecution. The Prosecution team
are also military officers. Following a decision by the Commission and review by a
review panel consisting of other officers
of the armed forces, the decision is then
55
Detainees sit around the exercise yard in Camp 4, the medium security facility
within Camp Delta at Naval Station Guantanamo Bay, Cuba. In Camp 4, highly
compliant detainees live in a communal setting and have extensive access to
recreation. Photo by US Army Sgt. Sara Wood.
passed on to the President of the United
States (who is the Commander-in-Chief of
the US armed forces) for review and final
decision.
Consider this second hypothetical: A
citizen is arrested by a policeman on suspicion that he may have committed some
unspecified crime. He is imprisoned for
two and a half years before he is charged
with any offence. When he is finally
charged it is proposed to try him before
a new tribunal which is wholly outside the
established court system. Further delays
occur with inevitable legal challenges to
the new tribunal which could only have
been expected by its architects. Four and
a half years then pass, yet still no trial has
occurred and no definite time frame for a
trial set down.
Indefinite delay of this kind is a clear
violation of the international standard
which requires that anyone detained on a
criminal charge shall be entitled to a trial
within a reasonable time, otherwise the
person is to be released. This standard is
contained in the ICCPR, an international
treaty to which both the United States and
Australia are parties.
The tragedy is that this is not a hypothetical. In fact it summarizes the reality of the inordinate delay suffered by
David Hicks imprisoned at Guantanamo
Bay.
Consider yet a third hypothetical: A
prisoner awaiting his trial is subjected to
56
prolonged isolated detention where he
sees no one and speaks to no one but his
interrogators for months. He is subjected
to an orchestrated and relentless program
of verbal abuse from his prison guards.
However, under the system of trial he
faces, evidence obtained as a result of
this treatment is not prohibited because
no physical pain or physical suffering
amounting to torture was involved or
could be proven. Nevertheless, such conduct would clearly breach international
standards which prohibit cruel, inhuman
and degrading treatment, and a fair trial
could not occur if evidence obtained by
these means was to be considered by the
jury.
David Hicks faces the possibility of
such evidence being used against him.
Whether or not he has been subjected
to such abuse or worse remains to be
seen. What is alarming is the fact that it
was only on 24 March this year, and in
response to considerable public pressure
on the matter, that the US Department of
Defense took steps to prohibit the reception of evidence at a Military Commission
trial that was obtained by the use of physical torture.
Even then the Military Instruction
falls well short of international standards.
Importantly it does not exclude evidence
obtained by techniques involving severe
mental suffering which is not accompanied by physical torture. It is not hard
to imagine a hideous array of examples
which would fit within such a parameter.
It is obviously unfair for David Hicks to
be exposed to a trial system which does
not exclude evidence obtained by these
means — and yet the potential is there for
this to occur.
Some improvements have been made
to the trial procedures to be used by
the Military Commission and Australia
has participated in this exercise. These
matters are set out on the website of
the Federal Attorney-General “David
Hicks Frequently Asked Questions”. The
Attorney-General’s website is at pains to
point out the steps that have been taken
to make the system appear to be fair and
to assert that this is the case.
However, they fall well short. To take
one example, the appointment of an independent Australian observer to observe an
unfair process does not make the process
fair.
The “reform” measures, such as they
are, do not address the deep-seated structural issues which militate against the
possibility of a fair trial being conducted in
accordance with international standards.
In fact they seek to disguise a fundamental assault on the rule of law and the traditional values placed in a fair trial which
have been developed over centuries.
The United States has exempted
all of its citizens from trial by Military
Commission. Moreover, the British government has publicly denounced the system and has extricated its citizens from
its operation. The Australian government
however, has been conspicuous in refusing to take similar action in relation to one
of its citizens.
In January this year 422 current and
former members of the United Kingdom
and European Parliaments rallied
together in support of a submission made
to the Supreme Court of the United States
in the Hamdan case. The submission
strongly censured the system of trial by
Military Commission as being fundamentally flawed and incapable of providing for
a fair trial by international standards.
Further, in February this year the
Economic and Social Council of the
United Nations published its report on
the arbitrary detention of detainees at
Guantanamo Bay and the proposal to subject them to trial by Military Commission.
The first recommendation of the Economic
and Social Council Report was that:
Terrorism suspects should be detained in
accordance with criminal procedure that
respects the safeguards enshrined in rel-
News and Views
evant international law. Accordingly, the
United States Government should either
expeditiously bring all Guantanamo Bay
detainees to trial, in compliance with articles 9(3) and 14 of the ICCPR, or release
them without further delay. Consideration
should also be given to trying suspected
terrorists before a competent international
tribunal.
This month Australian lawyers, in support of the International Commission of
Jurists Australian Section, have also taken
a stand on international law and have
condemned the inherent unfairness of
the trial planned for David Hicks and the
failure of our government to put an end
to this terrible injustice. Set out below is
their open letter to the Prime Minister of
Australia sent on 3 June 2006:
As Australian lawyers we wish to bring to
your attention that the imprisonment of
David Hicks at Guantanamo Bay and his
proposed trial by Military Commission are
illegal under international law.
Whether or not David Hicks is in fact
guilty or innocent is not the issue. The
illegality lies in the process of indefinite
detention and unfair trial by Military Commission, a process which expressly has no
application to any American citizen.
Notwithstanding contrary positions
adopted by the United States, the protections of international humanitarian and
human rights law, as reflected in the Geneva
Convention and the Civil and Political
Rights Covenant, remain applicable to Mr
Hicks. Both the United States and Australia
are parties to these treaties and are bound
by them. However, Australia has failed to
comply with its obligations and fulfill its
responsibilities under international law and
has been complicit in the conduct of the
United States.
The imprisonment at Guantanamo
Bay and the unfair trial of David Hicks
by Military Commission are an affront to
international legal standards, indeed all
civilized legal standards. The President of
the United States has claimed the unilateral
authority to try persons nominated by him
as suspected terrorists in a system which is
wholly outside the traditional civilian and
military judicial systems. He seeks to conduct such trials before persons who are his
chosen subordinates. The Military Commissions deny the basic rights to an independent and impartial trial and the procedures
do not exclude evidence obtained by coercion including the use of cruel, inhuman or
degrading treatment.
The system also denies the fundamental
right to an expeditious trial. David Hicks
was in custody for two and a half years
before he was charged on 10 June 2004. He
has now been imprisoned for four and a half
years without a trial. It is not fairly open to
attribute this inordinate delay to Mr Hicks
and his lawyers. It was the unjust system of
trial by Military Commission which gave rise
to his legitimate court challenge, a process
which in any event occupied a small proportion of the total period. Further, there
remains no explanation for the unconscionable delay prior to Mr Hicks being charged.
If Australia fails to join the United
Kingdom in condemning these violations,
it not only fails in its duty to one of its
citizens, it also plays a part in undermining
international legal order. This is not in our
own interests nor is it in the interests of our
strategic partner. It is therefore imperative
that Australia encourages the United States
to respect the principles of the rule of law
and the protection of the bed rock freedoms
which are enshrined in the major international law treaties.
The menace of terrorism is real. However, to meet the danger the world needs
not only a military solution, but renewed
and sustained commitment to the rule of
law and to fundamental principles of human
dignity and respect for human rights. This
is the shared heritage of a civilized world.
Unless we are vigilant, terrorism may
achieve the destruction of these values. We
should not give it such a victory.
The Hon. John Dowd AO QC, President,
International Commission of Jurists Australian Section on behalf of all of the Australian
lawyers who are signatories to this letter
published on www.icj-aust.org.au
The letter remains open for signature by Australian lawyers. Contact
Glenn McGowan SC, Chair ICJ (Victoria)
[email protected]
Verbatim
No Sledge-ing
Court
Coram: Martin M.
Robert Burns acting for applicant wife for
Intervention Order
Defendant husband self-represented.
At the conclusion of the wife’s evidencein-chief His Honour invited the husband
to cross-examine. One of his first questions was “When I knocked the door in, I
did not bring the sledge hammer into the
house — did I?”
A Relative Perspective
County Court of Victoria
8 March 2006
Galley, Collis QC and Ryan for Plaintiff
Dyer for Defendant
The Plaintiff was a man who on the evidence could not work more than 500
yards without pain.
Dyer: It’s one of the — well, regrettably
one of the sad facts of life with many people, your Honour.
Her Honour: But I’m not talking about
the sad facts of life with just any person.
I’ve got to assess the impact on this man.
Now, if he had been a big, fat, sedentary
barrister who just spent most of his leisure time in the Essoign Club, well, you’d
say: “Well so what that he can’t walk 500
yards? He’s probably never walked more
than 500 yards in his life.” But this was a
man who was clearly physically active.
��
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57
News and Views
Women Barristers
Association’s Third Annual
“Meet and Greet” at the
Essoign
Theme: “Refresh Your Wardrobe and Your Contacts”
The Women Barristers Association with Victorian Lawyers hosted the third
“Meet and Greet” event on Wednesday 14 June 2006. Lexis Nexis was the
principal sponsor for the third year.
G
UESTS arrived from 5.30 p.m.,
comprising over 100 women barristers, including some senior counsel
(Alexandra Richards QC, Fiona McLeod
S.C., Crown Prosecutor Michele Williams
SC, Jennifer Davies S.C.) and solicitors
from various law firms both small and
large, such as Maddocks, Russell Kennedy,
Baker & McKenzie, Blake Dawson Waldron,
Allen Arthur Robinson, Corrs Chambers
Westgarth, Phillips Fox, Australian
Government Solicitors, Customs and local
government. Attendees enjoyed Asian
inspired finger food (Peking duck rolls,
ricepaper rolls, sushi, san-choi bow) from
the Essoign and wine tasting, compliments
of Winsome McCaughey’s winery (Seven
Sisters Vineyard), and her Baddaginnie
Run label. The wines included their shiraz
2003 and 2004, merlot 2004 and verdelho
(white) 2003 and 2005.
At 6.15 p.m., Virginia Jay, Convenor
of Victorian Women Lawyers, welcomed
guests, and spoke about the gender
appearance data due to be released this
year by Australian Women Lawyers. She
then introduced Winsome McCaughey
who spoke about the Seven Sisters winery
which reflects seven generations of her
family being associated with its land since
1856 — when her great grandmother,
a widow with 13 children, arrived from
Scotland to the land where the winery was
established in 1996 (near the northern end
of the Strathbogie Ranges, and traditional
58
Participants in the fashion parade.
country of the Taungwurrung people). For
more information about her see www.badd
aginnierun.net.au
The next speaker was Marianne
Webster of “Fitted for Work” who spoke
about the services provided by this organisation she founded to help unemployed
women return to the workforce. Attendees
were invited to bring old suits to donate
to Fitted for Work which they did. The
services of Fitted for Work include offering business clothing and presentation
skills to women who may have been out
of work for a long time or who have never
had a job. Attendees were also invited to
continue donating clothes, volunteer in
the Fitted for Work boutique or consider
donating to this organisation. For more
information, see www.fittedforwork.org.
Guests were then asked to fill their
glasses as the fashion parade was to
begin.
The music came on, lights intensified and the 12 models paraded
(with turns) down the Paris-inspired
five-metre catwalk in Melbourne fashion
Rosemary Peavey,
solicitor.
Kaajal Fox, Articled
Clerk.
Caitlin Tierney on catwork.
Simone Jacobson, Convenor of Women
Barristers Association.
designer Tiffany Treloar’s winter and
spring/summer range, to music of Nina
Simone.
The models included barristers
Michelle Sharpe and Jane Forsyth, solicitors Christine Melis and Rosemary Peavey,
articled clerks Kaajal Fox and Caitlin
Tierney, a professional model, stockbrokers (being sponsors of a door prize)
and two younger non-lawyers including
daughter of barrister Trish Dobson, Kate
Dobson.
Christine Melis,
solicitor.
Jane Forsyth,
barrister.
The models were a mix of ages from
19–45, and sizes from 8–14. All models had professional hair (by Frank
Burgemester, Lygon Street, Carlton) and
make-up (Clinique and Estee Lauder by
Lisa and Belinda of Terry White, Sunbury)
for the event.
The fashions ranged from conservative, to the more outlandish, with some
fun top-hats featuring in the parade.
After the parade, Tiffany Treloar spoke
about her designs, and in particular her
use of technology to create her fabrics.
She uses photographs and digital images
she creates, using Photoshop, and
arranges for them to be printed straight
onto fabrics. For more information on her
fashions see www.tiffanytreloar.com.au.
Models were given gift bags by Tiffany
Treloar.
Simone Jacobson (Convenor of Women
Barristers Association) thanked Tiffany
Treloar for bringing the clothes, and
co-ordinating and choreographing the
parade, and presented her with a bouquet
of flowers. Simone spoke about how the
event came together — from one contact,
to another leading up to this event — and
pointed out that a list of attendees (with
direct phone numbers and email details)
was included in showbags for people to
take home. Simone also explained to
female solicitors how to find female barristers, and to consider briefing female
barristers by going into the Vicbar website,
checking the women barristers’ directory
and searching the area of practice.
Principal sponsor Lexis Nexis, Greens
List and other sponsors (such as Austock
and Terry White who provided door prizes)
were thanked, and Adele Bernard of Lexis
Nexis spoke warmly about Lexis wanting
to continue supporting this event, which
she said was their premier legal event
they sponsor in Australia. All sponsors
Michelle Sharpe,
barrister.
received bottles of wine as token of
thanks.
After some further mingling and talking about the fashions and wines, Caroline
Kirton, President of Australian Women
Lawyers, encouraged all present to attend
the first national AWL conference in
Sydney on 28–30 September 2006. Guest
speakers include judges from around
Australia, including the Chief Justice of
the Supreme Court of Victoria. For more
information about the conference, see
www.womenlawyers.org.au
Michelle Sharpe, WBA Assistant
Convenor, and Caroline Kirton called
the door prizes — Christine Melis, solicitor at Minter Ellison and a model in the
parade won a $300.00 handbag donated
by Austock. Shirley Power, a law student
soon to embark her legal career, won a
hamper of Ecotanical cosmetic products
(donated by Terry White). She later said
the prize affirmed for her that she had
chosen the right career path. The event
concluded at 8.30 p.m. and each guest
was asked to take home a Lexis Nexis
showbag, including various stationery
items, rocky-road and information from
Lexis Nexis, added to which were items
from Austock, samples of cosmetics from
Terry White, a list of stockists for Tiffany
Treloar’s clothes and a contact list of those
who attended.
All in all it was a successful evening
in terms of numbers of attendees, the
speakers, the outstanding wine and food
and the novelty of a fashion parade being
the first ever at the Essoign. A special
thanks to Nicholas Kangeropoulous at the
Essoign who is a pleasure to deal with and
accommodated the designer, and staging
company’s requirements.
Thanks also to Christine Harvey and
Geoff Bartlett for organising security and
access to the first floor for the night.
59
News and Views
Speech at Dinner for
Justice Susan Crennan
27 April 2006
Frank Costigan QC
W
E are here this evening to pay
tribute to one of our own.
This dinner is not a welcome,
nor is it a farewell to a former leader of
our Bar.
Welcomes form part of the liturgy of the
legal profession. They express the warmth
and the congratulations of the profession
to a newly appointed judge. In the case
of a newly appointed Justice of the High
Court they occur around the country as
each State has its own ceremony. I am
not sure the process is yet complete. I do
know they are a source of great satisfaction and pride to the new judge.
Tonight is different. The Victorian Bar
has already publicly taken part in the welcomes. There is no farewell from the Bar
which requires acknowledgment or regret.
Frank Costigan QC.
60
In a very personal sense we have come
here to recognise the very great contribution that Susan Crennan has made to this
Bar and to thank her for it. I will not dwell
on the great contribution she has made to
the Victorian and Australian community
in a number of areas. I note for the record
her past and continuing membership of
the Council of Melbourne University, her
association with both the Royal Women’s
and Royal Melbourne Hospital, her time
as Commissioner for Human Rights and
her strong connections with Melbourne
University Law School.
What I would like to do briefly is turn to
her life at the Bar and the great contribution she has made to the Bar and to recall
some memories.
Her contribution to this Bar has been
one of leadership, it has been professional,
and it has been personal.
Let me deal briefly with each of these
areas.
Susan Crennan was a member of the
Bar Council for seven years between 1988
and 1994. During that time she looked
after the books as honorary Treasurer,
she monitored our behaviour as a member of the Ethics Committee and she
represented us to the outside and often
critical world as our Chairman, and for
one year as President of the Australian
Bar Association.
On an occasion such as this it is, I
think, valuable to recall some of the people with whom she worked whilst she was
on the Bar Council. She was Treasurer
to Kirkham in 1991/1992, when Jessup
Guest of Honor Justice Susan Crennan addressing the
guests.
was senior Vice-Chairman, and was senior Vice-Chair to Jessup in 1992/1993.
In 1993/1994 she became Chairman.
Her senior Vice-Chair was Hansen: her
junior Vice-Chair was Habersberger. Her
Treasurer was Kellam. The current Chair,
Kate McMillan, was already a member of
the Bar Council and headed for greatness. The Executive Director was Ed
Fieldhouse and the Executive Officer was
Anna Whitney. Many of these people are
here tonight.
This was a formidable team to lead, but
lead she did.
Many have come tonight to pay her
honour. They include some 12 current and
past judges, appointed from the Victorian
Bar. Apart from the guest of honour there
are 12 former and current Chairmen of
the Bar. And many other distinguished
guests and friends.
In April 1992, whilst she was Treasurer,
Ken Hayne was appointed to the Supreme
Court of Victoria. His appointment to the
Court of Appeal was in 1995. He therefore
cunningly avoided being officially welcomed by our guest, though she looked
with great pleasure and admiration at his
inevitable rise to the heights of the High
Court. The Victorian Bar is immensely
proud of its two High Court judges. Their
contribution to the development of the
law in this country has been and will be
large.
Those of us here who have occupied
the position of Chairman know only too
well how constant and repetitive are the
fires which need to be dampened. Many
issues which arose during Susan’s time
as Senior Vice-Chairman and Chairman
had also appeared in similar form prior to
her taking up office and have reappeared
from time to time since she left. They
included:
• an attempt in the South Australian
Parliament to abolish the Bar;
• a decision by the NSW Government to
abolish the office of Queens Counsel;
• an attempt by the Commonwealth
Attorney-General’s Department to abolish the monopoly of the legal profession
in certain areas;
• a submission by the Commonwealth
Attorney-General’s Department to the
Trade Practices Commission to bring
the Bar under the auspices of the Law
Institute;
• a campaign by the Commonwealth
Attorney-General’s Department to
make legislation “user friendly”;
• and finally (and I am reluctant to recall
this matter in the presence of so many
distinguished judges) the announced
policy of Paul Keating to give judges
sex education.
All these matters required constant
consideration and careful response. This
they got from Jessup with Crennan at
his side and from Crennan when she
took office. The Bar was then and still is
immensely grateful for that work
Relations with the then Victorian
Attorney-General, Jan Wade, who occupied the Office from 1992 to 1999, were
often difficult: they were always conducted with courtesy and good manners
but with great firmness and resort to
principle. No better example can be found
than of her support for the principle of
independence of the Office of Director of
Public Prosecutions during the difficulties
caused to Bongiorno during that time.
His Honour Judge Frank Walsh AM,
Julie Davis and Rohan Hamilton.
Elizabeth Brophy, Kathryn Rees and
Dimity Lyle.
Peter Vickery QC, Colin Lovitt QC and
Tim North S.C.
Kate Anderon, Alexandra Richards
QC, Kevin Lyons and Chris Horan.
Gerard Meehan, Roisin Annesley and
Jack Keenan QC.
Kate Millan S.C., Sue Tsalanidis,
Jospeh Tsalanidis and Meg O’Sullivan.
PERSONAL
The essential danger about speaking in
a personal sense about a close friend is
that the speaker himself runs the risk
of becoming the subject and the friend
becomes merely an appendage to a small
autobiography.
Never fear. I do not propose to reveal
to this distinguished legal gathering any
of my past present or future failings.
However, I would not wish this occasion to
pass without some reflections on the personal qualities of our guest. She is known
to all of you one way or another: each of
you, I am sure, if asked could recount
some act of kindness, or some support,
intellectual or advisory, which she has
provided in a difficult time. Likewise you
could speak of the warmth of her personality and the great fun she was and is to
be with, and the wit and humour she has
brought with her to her friends. I will not
attempt to guess at what you would say if
you were called on. However, I can speak
from my own experience of sharing some
61
S.E.K. Hulme AM QC, Listing Master
Kathryn Kings, George Beaumont QC
and John Barnard QC.
Honourable Stephen Charles QC,
Jeffrey Sher QC and Hon. Jack
Hedigan QC.
Marie Santamaria, Paul Santamaria
S.C., Justice Susan Crennan,
Joseph Santamaria QC and Susan
Santamaria.
(Back)Felicity Marks, Jack Hammond
QC and Peter Fox. (Front) Ivan
Brewer, Susan Brewer and Lucy
Cordone.
Frank Costigan QC, Margaret
Barnard, Cameron Macauley S.C. and
Melanie Sloss S.C.
Frank Costigan QC, seated, QC, with
S.E.K. Hulme AM, QC and Justice
Susan Crennan.
Robin Brett QC and David Curtain QC.
20 years on the 17th floor with her, including the four or five years when I shared
a secretary with her and Michael. Others
on the floor, in no particular order, were
Cummins, Weinberg, Berkeley, Hedigan,
Barnard, Chernov, Hansen, Bongiorno,
Jolson, Kennon, and the Santamaria
brothers. We all knew that her door was
always open and her counsel was always
available.
I have travelled with her and her husband and daughter in Europe. A highlight
was my 60th birthday lunch on a warm
winter day in Rome when she and Michael
and young Kathleen (as she then was) and
two of my daughters toasted each other
and gloried in the pleasures of friendship.
62
Michael Shand QC, Jennifer Futcher,
Brendan Griffin S.C. and Michael
Thompson S.C.
But enough of that.
As I prepared this short address I pondered whether I could find a word which
was the complete opposite of that extraordinary German word “schadenfreude”. I
was hoping to find a way to express the
feeling of pleasure which we all have in
the presence of Sue’s achievements. I
thought a good German dictionary might
provide the answer. But it did not. There
have been attempts made over the years
to solve this linguistic problem and much
discussion in the Times. Gore Vidal’s oft
quoted statement “whenever a friend of
mine succeeds, a little something in me
dies” is clearly not the answer. A writer
in the Times produced a complex German
compound
noun
(Erfolgtraurigkeit:
I refuse to attempt to pronounce it).
Neither answer is adequate or even accurate.
Can I do better than say on behalf of all
here present, and those members of the
Bar not present, how much we treasure
our memories of our guest, how much we
take pride in her accomplishments, and
how much we thank her for the pleasure
she has given us and the very great contribution she has made to the integrity of
the law.
May I ask you to join with me in toasting
our guest, Justice Susan Crennan.
News and Views
Victorian Bar Legal
Assistance Scheme
(VBLAS)
A “thank you” function to thank those who have been engaged in the
Victorian Bar Legal Assistance Scheme was held in the Essoign Club on
30 March 2006.
In his welcome address, the Honourable Justice Neil Young outlined in
some detail the operation of Order 80 of the Federal Court Rules and the
administration of the pro-bono referral service pursuant to that order.
The text of his Honour’s address is set out below.
I
T is with great pleasure that I welcome
you to this function. Its purpose is to
thank all those who have contributed
their time and skill to the Victorian Bar
Legal Assistance Scheme.
The Scheme was established in 1995.
The Scheme, which is now in its sixth year
of administration by PILCH, has made an
important contribution to pro bono practice in Victoria. Its activities extend, of
course, far beyond the Federal Court. The
Scheme deals with referrals from community legal centres, Victoria Legal Aid
and all of the various courts in this State.
Nonetheless, the Federal Court remains
an important area of work.
This evening I would like to reflect on
Order 80 of the Federal Court Rules and
the Court’s experiences of the pro bono
legal assistance scheme to date.
Order 80 represents the first pro
bono assistance scheme established
by an Australian Court. The statutory
rule came into effect on 7 December
1998. As Chairman of the Victorian Bar
Council around that time, I was involved
in discussions concerning the drafting of
Order 80 and the implementation of the
proposed scheme in Victoria. I recall the
Honourable Justice Merkel’s enthusiasm
for the project, which his Honour had
conceived after attending an international
conference celebrating the 50th anniversary of the Declaration of Human Rights
in Washington DC. Justice Merkel initiated a series of consultations in each of
the States between members of the Court
and the local Bar and Law Institute, with
a view to establishing a panel of barristers
and solicitors who were prepared to offer
their assistance under the scheme.
The conceptions which underpin Order
80 are simple and effective. Under Order
80, a judge may, if it is in the interests
of the administration of justice, refer a
litigant for pro bono legal assistance. In
considering whether it is in the interests
of the administration of justice to make a
referral, the judge may take into account
the litigant’s financial position, the potential for the litigant to access legal assistance outside the Federal Court scheme,
and the nature and complexity of the
proceeding.
The basic process is this. When a judge
decides to refer a matter under Order
80, the judge’s associate provides a certificate to the Registrar setting out the
terms of the referral. There is a specific
registrar in each Federal Court registry
responsible for administering the pro
bono referral process. In the Victorian
Registry, the Deputy Registrar refers the
matter to PILCH and the Victorian Bar
Legal Assistance Scheme who maintain a
register of practitioners who have volunteered their services in particular areas
of practice. Usually three to four practi-
tioners are identified by PILCH who are
then approached to accept the referral.
Once a practitioner accepts, the Registrar
provides the practitioner with copies of
the court documents and other necessary
information.
One of the important safeguards for
litigants under Order 80 is that a practitioner who has accepted a referral can
only cease to act for the litigant in certain circumstances, including where the
litigant has consented in writing, or where
the practitioner has been granted leave of
the Registrar. Order 80 also provides that
practitioners acting pro bono can recover
their fees and disbursements where a
costs order is awarded in favour of the
litigant.
Usually, a referral under Order 80 is
made in general terms — for example,
a judge may make a referral for the
litigant to be represented in a proceeding. Sometimes a referral under Order
80 is narrower in scope — for example,
the referral might be limited to providing
advice to the litigant on grounds of appeal
and, subject to that advice, drafting documents and appearing at the appeal. In
other circumstances, a litigant may be
referred for pro bono representation at
a case management conference or mediation. The practitioner who had accepted
the referral may be called upon to assess
the chances of success of the appeal,
63
and to take further steps as appropriate,
including taking steps to obtain a further
referral for pro bono assistance.
When Order 80 was being drafted, the
question arose whether a practitioner
should be required to disclose openly to
the court the basis upon which he or she
applies for leave to cease to act for a litigant. It was decided that the grounds for
ceasing to act should be kept confidential.
As enacted, Order 80 provides that an
application for leave to cease to act may
be heard by the Registrar in chambers and
may be heard ex parte. The applicant is
served with a copy of the application. The
application and any related correspondence is kept confidential, is not part of
the proceeding in relation to which the
referral is made, and does not form part of
the court file. This procedure is intended
to afford a litigant a degree of protection against the potentially prejudicial
effects of a practitioner’s application for
leave.
The number of referrals under Order
80 is impressive. From its introduction in
1998 to the end of 2005, there have been a
total of 1032 referrals under the Order 80.
There have been a considerable number
of referrals in the areas of administrative
law, bankruptcy, corporations, crime,
human rights and equal opportunity,
industrial relations, intellectual property,
native title, and trade practices. However
the greatest proportion of referrals, both
nationally and in Victoria, have been
migration matters — some 835 migration
matters have been referred nationally,
with 218 in Victoria. Interestingly, though,
the number of migration references has
fallen in most jurisdictions since 2003 (the
exception is NSW, which had 31 referrals
last year).
Migration appeals occupy a significant
64
proportion of the court’s time and raise
some troubling issues in relation to access
to justice. Justice Merkel’s comments
at the National Pro Bono Conference in
2003 highlight a particular problem of pro
bono representation of migration cases on
appeal in the Federal Court:
Plainly, there is an understandable groundswell of sympathy in the legal profession for
the plight of asylum seekers. Many barristers and solicitors offer to appear for unrepresented asylum seekers in the courts in
order to challenge decisions of the Refugee
Review Tribunal. However, there is a real,
but not well understood, problem in that
area. The Tribunal conducts merits review.
Review in the courts has been strictly limited to, putting it simply, errors of law or
jurisdictional errors that affect the outcome
of the case. Most cases decided adversely to
asylum seekers in the Tribunal are decided
on credibility issues — issues of a forensic
kind that solicitors and barristers are well
equipped to deal with. Yet generally their
role comes into play only after the case has
been lost at the Tribunal level, making the
task on judicial review extremely difficult.
Thus, so many well intentioned pro bono
cases have proved to be fruitless because
the effective representation arrived too
late.
Judges in the Federal Court are keenly
aware that a Federal Court appeal is usually the “last stop” for migration litigants,
and are concerned to assist litigants with
potentially meritorious claims to obtain
pro bono legal representation. Referrals
are only made after the case has been carefully considered by the judge. Conversely,
practitioners know that if the Court refers
a matter under Order 80, the case may be
one that raises real issues and the Court
considers that the interests of justice
would be served by legal representation.
In my time at the Federal Court, out of the
ten or so migration cases that have come
before me, I have made one referral under
Order 80. Generally speaking, the experience of the Federal Court has been that
referrals have resulted in representation
of a high standard.
Order 80 has, I think, been such a success because of the mutual respect and
cooperation that exists between Bench
and Bar. A sign that the process is working well is the fact that State Supreme
Courts have introduced or are planning to
set up similar schemes. For example, Rule
66A of the Supreme Court Rules of NSW
establishes a pro bono scheme and there
are indications that the Supreme Court of
Victoria is considering introducing provisions based on Order 80 of the Federal
Court Rules.
Order 80 owes its success primarily
to the commendable work done by practitioners acting pro bono in the Federal
Court. There has been no shortage of
practitioners who have been willing to
assist. Approximately 25 per cent of
Victorian barristers — and now possibly
a greater percentage — have volunteered
to participate in the Victorian Bar Legal
Assistance Scheme. A large number of
barristers, senior and junior, regularly
appear pro bono in the Federal Court. It as
important to the courts, and to the community, that pro bono assistance schemes,
such as the Victorian Bar’s Scheme, continue to meet the many demands placed
upon them.
I would like to thank all those who have
supported the Scheme, including those
present here this evening, for your commitment to pro bono practice.
News and Views
Twenty-five Years of the
Victorian Bar Readers’
Course
Speech by Kate McMillan S.C. at a dinner held on Thursday 11 May 2006 in
Owen Dixon Chambers Melbourne
I
was delighted to be invited to address
this dinner of newly signed members of
the Victorian Bar and to mark the first
25 years of the Victorian Bar’s Readers’
Course.
I do so with a sense of nostalgia and
with a sense of pride in what the Victorian
Bar has achieved over those years.
I also do so with the benefit of some
lessons learnt over those 25 years. One
of them is that it is dangerous to give an
open-ended invitation to barristers — or
former barristers — above a particular
age to give their reminiscences. I would
fix that age at about 30.
About 20 years ago I presided, as
Chairman of the Bar Readers’ Course, at
a dinner such as this. That group of Bar
readers was a particularly vigorous one
and they were restive because they were
keen to produce a revue. But first there
was a guest speaker. He was a retired
judge for whom everyone had much
affection. The problem was that he went
on and on — and on. Moreover, he spoke
from speaking cards, which he produced
from the left pocket of his suit. At about
card number seven he had been going
for 45 minutes and there seemed to be at
least three more cards to go. The readers
were getting very restive. I calculated that
at the current rate of progress — about six
minutes per card on average — he would
finish within the hour. Keen to avoid a
scandal, I looked sternly at the audience
hoping that they would restrain themselves and would continue to look interested. (Looking interested and engaged
irrespective of one’s actual feelings is one
of the acquired skills of a barrister. Some
hypocrisy may be involved here but it is
acceptable, if not overdone.)
In any event, when what I took to be
the last card hit the tablecloth, I had a
great feeling of relief. I was about to rise
to thank his Honour for “an extremely
interesting and engaging address” when
he thrust his right hand into his right suit
pocket and produced another handful of
prompt cards. Without pausing he began
Part Two of his Reminiscences, starting
at card 11.
I shall try to avoid making the same
mistake, but since this is a celebration of
25 years of the Bar Readers’ Course, a few
recollections about how it used to be will
serve to illustrate how far the Course has
now come.
When I joined the Bar it was possible
to take a law degree, to spend a year or
two in a solicitor’s office and then to be
admitted to practise and to sign the Bar
Roll on more or less the same day. This is
what I did. I was still 23 years of age when,
as a new member of the Victorian Bar, I
drove off in an aging Fiat 500 to the Court
of Petty Sessions at Broadmeadows, there
to uncoil from the tiny Fiat and crossexamine my first police witness. I had
When I joined the Bar it
was possible to take a law
degree, to spend a year or
two in a solicitor’s office
and then to be admitted
to practise and to sign the
Bar Roll on more or less
the same day. This is what
I did.
never examined a witness in my life, much
less cross-examined one. In fact, I had
never appeared for a defendant before. I
had made a submission on a point of law,
but that was in a moot case — which I had
lost.
I did of course have a Master — the
late Edward Lloyd. For the following nine
months I learnt a great deal from him
— some of it through stories, some of it
by discussion and some of it by watching other advocates, including himself.
The stories were what I remember best
— including those he told about his own
triumphs and very occasional losses.
There were about 300 practising barristers at the time and I soon came to
know nearly all of them, and they me. I
read some books about advocacy, which
I actually found quite useful and, fundamentally, I learnt on the job.
A Master would provide much good
advice, but the practical training was
achieved largely by trial and error. One’s
Master did of course have friends — many
of them. Some of them were specialists in
particular areas. They were all happy to
help. I remember these people with affectionate gratitude, even to this day. Most
of them became judges — one became a
High Court judge — and I think they have
all now completed their legal careers.
The so-called “open door policy” of the
Victorian Bar was very strong and advice
to a younger barrister on any specific issue
was always freely given. The issue was
meant to be specific and the policy was
not meant to extend to advising you how
to conduct a whole case, although that is
sometimes how it ended up, such was the
generosity of one’s older colleagues.
Learning “on the job” was encouraged
65
by some Bar customs that later fell into
disuse. We were encouraged to lunch in
the common room, which was on the ninth
floor of the then newly built Owen Dixon
Chambers. Barristers gathered there for
morning tea and for afternoon tea as well.
The strict rule was that one sat at the next
vacant seat. This meant that you might be
seated next to someone of great seniority
— and apparent ferocity — whom one was
not allowed to address as “Mister …” but
whom one felt reluctant to call by either
the first name or the surname alone — as
was the requirement. The point of it all
was, though, that one very soon became
part of a group of people who had a strong
collegiate bond.
(It has to be said that some of this
was very blokey. This used to irritate
my Master and I remember at morning
tea one Monday, when the sole topic of
conversation was the previous Saturday’s
VFL games, he asked — in a brief pause
in the conversation: “Anyone read any
good pacifist novels lately?” “Don’t be silly
Woodsy,” came the reply. There were only
three women at the Bar at that time — all
of them wonderful people and great pioneers in their own distinctive ways. I recall
them with affection and respect too.)
Much teaching of the art of the barrister came through the stories of great
triumphs and great losses. Some of them
were no more than war stories but many
illustrated a striking point about advocacy
and were worthy of retelling anyway, as
stories.
Let me give just two examples from a
much later era — I tell them because I was
there when they happened. Justice Susan
Crennan, who was also there, has told
them at one of her judicial welcomes and
they are now, I am pleased to say, consequently in the Commonwealth’s archives.
You will see the point of the first story
when I tell it.
It occurred in the DOGS case, the
High Court challenge by the Council
for the Defence of Government Schools
the constitutional validity of grants of
Commonwealth money to the States for
the purpose of assisting non-government
schools owned and run by religious bodies. The challenge was founded upon
s.116 of the Constitution which forbids
the Parliament of the Commonwealth
making a law with respect to the establishment of any religion. Leading counsel
for the DOGS, Neil McPhee QC, was one
of the finest barristers that I ever saw
and unquestionably one of the great
cross-examiners of his time. The hearing
was before Justice Lionel Murphy and
66
McPhee had to make his case by calling witnesses from the Catholic Church,
including members of an order of nuns.
McPhee was trying to establish that these
nuns — who were members of a teaching
order — were in fact, through the grant
of Commonwealth money to support their
schools, engaging in work that would
attract the prohibition in s.116 to the law
that had authorised the grant.
Looking, as he often did, in an impishly
friendly and confidential way at the witness, he said: “Sister Mary, I suppose, at
your school, you and the other nuns pray
from time to time.” “That we do indeed,
Mr McPhee.” He established that they
prayed every day.
“What do you pray for?” “We pray for
many different things, Mr McPhee.”
“Well, what sort of things?” he pressed.
It was “apparent to the Bar
Council that the standards
of the very junior Bar were
capable of improvement”.
It was therefore “intended
to provide a course of
training in the skills
required by a practising
advocate”.
Thus was the Readers’
Course born.
This is when, under the classical rule of
cross-examination McPhee should have
stopped and left well alone. “What sort
of things?”
“Well, this morning, for example, we
prayed for you, Mr McPhee.”
I was at the Bar table at the time as
junior counsel for the Commonwealth.
The other version of the story is that the
nun said: “We pray for people like you, Mr
McPhee.” But I think the gentler version is
better, and much truer to the witness as I
remember her.
The next day McPhee again broke
the rule that one does not ask a question
unless pretty sure of the answer. He said
to another nun, “I suppose you would wish
for a perfect world, Sister?”
“We should all wish for a perfect world,
Mr McPhee.”
“And I suppose, Sister, in a perfect
world you would prefer all your staff to
be Catholic?”
The answer was immediate. “Oh dear
no, Mr McPhee, I can’t imagine anything
worse than a staffroom full of Catholics.”
The consequences here were trivial.
No harm was done to the case and there
were two good stories to tell about Neil
McPhee. We tell them still. But in other
circumstances and in other hands, the
errors — if that is what they really were
— could have had very serious consequences.
Stories like these, sometimes grossly
embellished, were part of the way in which
we learnt. There were also mechanisms of
support. The first time I came back from
Petty Sessions, my Master said, “You look
pretty upset. You’re surely not going to
tell me that the Magistrate believed the
police!” “How did you know?” I replied. I
soon learnt about things like that.
On another memorable occasion, the
late Don Campbell QC — a great advocate
but a crotchety one with a gammy leg
— saw a young common law barrister in
apparently deep distress. The conversation went something like this:
“What’s the matter with you, Sonny?
You look as though you’re about to be
hanged.”
(We were taught, and expected to
observe, the difference between being
hanged and hung. In those days it was,
distressingly, still relevant at the Bar.)
“Yes, Donny, I’ve had a terrible loss for
a plaintiff.”
“Oh dear,” said Donny, “Tell me about
it.”
The young barrister told the sad tale of
a dreadful loss for a deserving plaintiff, at
the end of which Don Campbell replied,
“Deary, deary me. That’s bad! Never mind,
it happens to us all. It’s happened to me
once or twice.” And then there was a long
pause. “Though, I’m bound to say … never
anything like as bad as that.”
The Bar was of course very, very much
smaller then. There were some 300 of us
but our number then grew quite rapidly
and by the end of the 1970s there were
concerns that not everyone coming to
the Bar really had a career at the Bar at
heart.
There were some interesting resolutions of the Bar Council. One of them,
reported in the Bar News for the Spring
of 1979, recited that there “may have been
a decline in the standards of the very junior Bar” and it was resolved to investigate
these standards and if necessary to consider what restraints there should be on
the signing of the Bar Roll. The Roll was
then temporarily closed. I should point
out that in earlier days one could sign the
Roll more or less whenever one wanted —
the only requirement was to find a Master
who would take you and a clerk.
Some months later, there was another
meeting of the Bar Council at which, so
the records tell us, it was accepted that
“there had been no decline in the standards of the junior Bar” but on the other
hand it was “apparent to the Bar Council
that the standards of the very junior Bar
were capable of improvement”. It was
therefore “intended to provide a course of
training in the skills required by a practising advocate”.
Thus was the Readers’ Course born.
The records are not inconsistent with the
suspicion held at the time that the course
was started in response to the perceived
problem of dilettante solicitors swelling
the numbers at the Bar and taking advantage of the facilities the Bar had to offer
without seriously intending to pursue the
Bar as a career. One of the most valuable
of those facilities was the ability to lease
chambers at a rent that even a newcomer
could afford. In contrast to the position in
Sydney, good chambers were available for
lease and, indeed, in those days, chambers
could not be bought at all. The Bar was
very proud of this, which it saw as a manifestation of the principle of a Bar open
to all those of talent. (Note that there is
some inconsistency here.)
But whatever prompted the development of the Victorian Bar’s Readers’
Course it was certainly innovative and
progressive from the very beginning. Even
in the late 1970s, legal education outside
the formal teaching of law courses was in
its infancy. Judicial education, which is
now an obvious and accepted part of judicial life, was then a highly controversial
idea. There was no “judicial education”
as we would understand it today. Nor,
as best as I can recall, had there been
any substantial teaching of advocacy, in
any formal way, in Australia at that time.
Some formal teaching of advocacy began
at Monash University in that era but my
recollection is that it was after the Bar
Readers’ Course had begun. The teaching of advocacy through daily contact
with one’s readers could hardly have been
called “formal”.
So, whatever the motives for the establishment of the Victorian Bar Readers’
Course — they may have been mixed and
I do not think it matters very much at all
what they were — the idea attracted the
support and the talents of some remarkable people (including George Hampel
QC and, later, Felicity Hampel) who had a
passion for teaching advocacy.
The early facilities were primitive but
the Course rapidly developed a very high
reputation, which quickly spread inter-
state. For the first time, aspiring barristers
were required to “perform” before a critical audience, whose task it was to offer
constructive comments. We also ventured
— for the first time anywhere — into the
use of video technology. This really was
an innovation. I recall the purchase of the
first video machine. It was a very big deal
indeed. The machine itself was large, very
heavy and very expensive. It was seen as
a vulnerable item — an attractive object
of theft. It cost some thousands of dollars
in the money of the early 1980s. A large
cupboard was constructed especially to
keep it in. It was fitted with a substantial
lock. We also booby-trapped the cupboard
so that if anyone tried to open it to steal
this valuable device, bells would ring and
an imitation police siren would sound.
Many people worked to develop the
Readers’ Course. Some 50 barristers,
many of them very senior, helped with
each course. There was also much support
from the judiciary and from some people
outside the law. Enduring and invaluable
contributions were made in my time by
Mrs Anna Whitney and Ms Barbara Walsh.
Their administrative abilities and their
“pastoral” talents were quite remarkable.
They were key ingredients in the success
of the Course. What a pleasure it is to see
Barbara Walsh here tonight! She deserves
the thanks, and the applause, of us all.
The Course soon became a model
for other readers’ courses in New South
Wales and Queensland, and some of the
experience gained in our Readers’ Course
was used by Mr Hampel QC (later Justice
Hampel) and Felicity Hampel (now Judge
Hampel) to teach in places as diverse as
Port Moresby and the Inns of Court in
London.
I had the satisfaction of being the
Chairman of the Readers’ Course from
September 1981 until 1987.
As well as providing practical lessons
in advocacy — and some theory as well
— the Bar Readers’ Course as I knew it
— no doubt it is the same now — provided
what today would be called a “cohort” of
people who pass through the course
together. This, I believe, was a valuable
collegiate experience — an appropriate
and practicable adaptation to serve a very
much enlarged Bar.
When I was Chairman of the Course
— and I am sure it was the same after
me — I was keen to underline some of
the positive and attractive aspects of life
at the Bar, but I was also keen to warn
against some of the unattractive aspects,
the most notable of which, in my view,
was (and still is) the tendency of brilliant
professionals to arrogance. This is a most
unattractive quality, disliked by judges,
jurors and clients alike. Solicitors do not
like it much either. Confidence, of course,
is another thing entirely — especially the
real confidence born of a total mastery of
the facts and the law of a particular case.
A barrister who has confidence of that
nature will leave an arrogant opponent at
a very serious disadvantage.
I was also keen for readers to understand the positive aspects of the collegiate
life at the Bar, which I still think is very
important. I am reminded to urge readers to attend Bar functions, including the
forthcoming Victorian Bar Dinner.
To sum up — 25 years ago the Victorian
Bar showed great leadership by establishing and then developing the Bar Readers’
Course. One of the most satisfying aspects
of a career at the Bar which, overall, I
found very satisfying indeed, was my
involvement in the development of that
course. I have retained a connection with
it ever since and it is a connection that I
am very happy to celebrate tonight.
Do I have some concluding observations to a group of barristers about to
embark upon what one great barrister of
an earlier age once described as “the most
interesting profession in the world”? I will
venture just a few. If you ask a group of
senior lawyers “Why be a barrister?” you
would, I imagine, get a reasonably wide
range of answers but I suspect that they
would cluster around the points that I will
now briefly make.
Being a barrister involves playing an
integral part in the functioning of one
of the fundamental institutions of our
democracy — the courts.
For anyone really interested in the
law, and with a sense that the law and its
institutions can be — and indeed should
be — a force of good in society, a career
at the Bar offers much satisfaction. To
me, there was always something intensely
satisfying in taking a case and developing
it to the very best of one’s ability. The
satisfactions were not confined to the
dramas of the common law action; they
extended equally to intellectual engagements on points of law with judges — at
first instance and on appeal.
There is a very creative aspect to the
work of a good barrister. You write your
own script and then you perform it and
yet the script has to be infinitely adaptable. The performance always matters
and the outcome always matters.
Every case is important to the client but you will all have cases that are
of decisive importance in people’s lives.
67
News and Views
That is an immense responsibility and,
an immense privilege, but also a source of
very great satisfaction.
Some would say that the courts are,
more than ever, forums in which great
social issues are determined. To be
involved in these cases is especially satisfying for counsel. But the same can be
said about cases that involve the dynamic
economy of this country, such as those in
the fields of intellectual property, or competition law, to take just two examples.
There may indeed be the highlights but
my experience was that satisfaction and
excitement was to be found almost every
day. It all depends upon how one looks at
it, and how one goes about it.
As a good barrister in the common
law system you must be prepared to
work in the frontier lands — to those
areas where incremental development
of the law is possible, but has not yet
occurred. Good barristers are to be found
where the boundaries of the known legal
world are being explored. Of course they
are explored in great cases such as the
Tasmanian Dam case: they were especially exciting but the boundaries can be
explored in smaller cases too. They are all
very important.
There will of course be times when you
wonder whether you are completely mad
to be doing all this. The boundary lands
are difficult, challenging places.
But the challenges are everywhere.
There is an undeniable tension when
the jury knocks late at night in an empty
courthouse, and the judge is called, and
the barristers come back into the court,
and the accused is brought into the dock
and his family gather around him, and it
is plain that the jury has at last reached
a verdict, and they line up in front of the
jury box waiting for the judge, and the
judge is still not there, and then the judge
arrives and the court is opened and the
associate asks the jury whether they have
reached their verdict — and they have.
“How say you …?” What is to become of
the rest of your client’s life?
Nerves in those situations — and in
many others — a part of what it is to be a
barrister. But somehow the challenge, the
excitement and the worthwhileness of it
all keeps you coming back — and back.
That was my experience — I do hope it
is yours too.
On this 25th anniversary of the
Victorian Bar’s Readers’ Course may I
offer each and every barrister who has
signed the Roll of Counsel today my very
best wishes for a satisfying and thoroughly
worthwhile career at the Bar.
68
Galveston
Decision
Robust Judicial Criticism
Sometimes members of the Bar complain that members of the
judiciary in the course of argument have been unduly harsh in their
criticism of counsel’s argument. Very seldom does that criticism spill
over into the judgment handed down.
Those whose sensibilities have been offended should take note of
how gentle our courts really are. The extract below is taken from a
decision of District Judge Kent in the United States District Court
sitting at Galveston, Texas.
T
HE proceeding involved an action
brought by a seaman against a dock
owner for personal injuries suffered
while he was working on board a vessel
using the dock. The issue was whether
the three-year federal statute for maritime
personal injuries applied or whether the
Texas two-year statute of limitations for
personal injury cases applied.
Before proceeding further, the Court
notes that this case involves two extremely
likable lawyers, who have together delivered some of the most amateurish pleadings ever to cross the hallowed causeway
into Galveston, an effort which leads the
Court to surmise but one plausible explanation. Both attorneys have obviously
entered into a secret pact — complete
with hats, handshakes and cryptic words
— to draft their pleadings entirely in
crayon on the back sides of gravy-stained
paper place mats, in the hope that the
Court would be so charmed by their childlike efforts that their utter dearth of legal
authorities in their briefing would go unnoticed, Whatever actually occurred, the
Court is now faced with the daunting task
of deciphering their submissions. With Big
Chief tablet readied, thick black pencil in
hand, and a devil-may-care laugh in the
face of death, life on the razor’s edge sense
of exhilaration, the Court begins.
Summary judgment is appropriate if no
genuine issue of material fact exists and
the moving party is entitled to judgment
as a matter of law. See Fed.R.Civ.P. 56(c):
see also Celotex Corp. v Catrett, 477
US, 317, 323, 106, S.Ct, 2548, 2552–53,
91 L. Ed.2d 265 (1986). When a motion
for summary judgment is made, the nonmoving party must set forth specific facts
showing that there is a genuine issue for
trial. See Anderson v Liberty Lobby, Inc.
477, CJ.S. 242, 250, 106, S.Ct, 2505, 2510,
91, L Ed.2d, 202 (1986). Therefore, when
a defendant moves for summary judgment based upon an affirmative defense
to the plaintiffs claim, the plaintiff must
bear the burden of producing some
evidence to create a fact issue some element of defendant’s asserted affirmative
defense. See Kansa Reinsurance Co.
Ltd v Congressional Mortgage Corp, of
Texas 20 F.3d 1362, 1371, (5th Cir.1994);
F.D.J.C. v Shrader & York, 991, F2d, (5th
Cir.1943).
Defendant begins the descent into
Alice’s Wonderland by submitting a Motion
that relies upon only one legal authority. The Motion cites a Fifth Circuit case
which stands for the whopping proposition that a federal court sitting in Texas
applies the Texas statutes of limitations
to certain state and federal law claims. See
Gonzales v Wyall. 157, F.3d, 1016, 1021,
n. l (5th Cir.1998). That is all well and
good — the Court is quite fond of the Erie
doctrine; indeed there is talk of little else
around both the Canal and this Court’s
water cooler. Defendant, however, does
not even cite to Erie, but to a mere successor case, and further fails to even begin
to analyze why the Court should approach
the shores of Erie. Finally, Defendant does
not even provide a cite to its desired Texas
limitation statute. (FN2) A more bumbling
approach is difficult to conceive — but
wait folks, There’s More!
FN2. Defendant submitted a Reply brief, on
11 June 2001, after the Court had already
drafted, but not finalized, this Order. In a
regretful effort to be thorough, the Court
reviewed this submission. It too fails to cite
to either the Texas statute of limitations or
any Fifth Circuit cases discussing maritime
law liability for Plaintiff’s claims versus
Phillips.
Plaintiff responds to this deft, yet
minimalist analytical wizardry with an
equally gossamer wisp of an argument,
although Plaintiff does at least cite the
federal limitations provision applicable to
maritime tort claims. See 46 USC § 763a.
Naturally, Plaintiff also neglects to provide
any analysis whatsoever of why his claim
versus Defendant Phillips is a maritime
action. Instead, Plaintiff “cites” to a single
case from the Fourth Circuit. Plaintiffs
citation, however, points to a nonexistent
Volume “1886” of the Federal Reporter
*671 Third Edition and neglects to provide a pinpoint citation for what, after
being located, turned out to be a fortypage decision. Ultimately, to the Court’s
dismay after reviewing the opinion, it
stands simply for the bombshell proposition that torts committed on navigable
waters (in this case an alleged defamation
committed by the controversial G. Gordon
Liddy aboard a cruise ship at sea) require
the application of general maritime rather
than state tort law. See Wells v Liddy
186 F 3d, 505, 524 (4th Cir. 1999). (What
the ...)?! The Court cannot even begin to
comprehend why this case was selected
for reference. It is almost as if Plaintiff’s
counsel chose the opinion by throwing
long range darts at the Federal Reporter
(remarkably enough hitting a nonexistent volume!). And though the Court often
gives great heed to dicta from courts as
far flung as those of Manitoba, it finds
this case unpersuasive. There is nothing in Plaintiff’s cited case about ingress
or egress between a vessel and a dock,
although counsel must have been thinking
that Mr Liddy must have had both ingress
and egress from the cruise ship at some
docking facility, before uttering his fateful
words.
Further, as noted above, Plaintiff has
submitted a Supplemental Opposition
to Defendant’s Motion. This Supplement
is longer than Plaintiff’s purported
Response, cites more cases, several constituting binding authority from either
the Fifth Circuit or the Supreme Court,
and actually includes attachments which
purport to be evidence. However, this is
all that can be said positively for Plaintiff’s
Supplement, which does nothing to explain
why, on the facts of this case, Plaintiff has
an admiralty claim against Phillips (which
probably makes some sense because
Plaintiff doesn’t). Plaintiff seems to rely
on the fact that he has pled Rule 9(h)
and stated an admiralty claim versus the
vessel and his employer to demonstrate
that maritime law applies to Phillips. This
bootstrapping argument does not work;
Plaintiff must properly invoke admiralty
law versus each Defendant discretely. See
Debellefeuille v Vastar Offsore, Inc. 139
F.Supp.2d, 821, 824, (S.D.Tex.2001) (discussing this issue and citing authorities).
Despite the continued shortcomings of
Plaintiff a supplemental submission, the
Court commends Plaintiff for his vastly
improved choice of crayon — Brick Red is
much easier on the eyes than Goldenrod,
and stands out much better amidst the
mustard splotched about Plaintiffs briefing. But at the end of the day, even if you
put a calico dress on it and call it Florence,
a pig is still a pig.
[1][2] Now, alas, the Court must return
to grownup land. As vaguely alluded to by
the parties, the issue in this case turns
upon which law — state or maritime
— applies to each of Plaintiff’s potential
claims versus Defendant Phillips. And
despite Plaintiff’s and Defendant’s joint,
heroic efforts to obscure it, the answer
to this question is readily ascertained.
The Fifth Circuit has held that “absent
a maritime status between the parties,
a dock owner’s duty to crew members of
a vessel using the dock is defined by the
application of state law, not maritime law.”
Florida Fuels, Inc. v Citpo Petroleum
Corp. 6 F.3d, 330. 332, (5th Cir.1993)
(holding that Louisiana premises liability law governed a crew member’s claim
versus a dock which was not owned
by his employer); accord Forrester v
Ocean Marine Indetn. Co. 11 F.3d,
1213, 1218, (5th Cir 1993), Specifically,
maritime law does not impose a duty on
the dock owner to provide a means of
safe ingress or egrcss. See Forrester, 11
F.3d at 1218. Therefore, because maritime
law does not create a duty on the part of
Defendant Phillips vis-a-vis Plaintiff; any
claim Plaintiff does have versus Phillips
*672 must necessarily arise under state
law. [FN3] See Florida Fuels, 6 F.3d at
332–34.
FN3. Take heed and be suitably awed, oh
boys and girls — the Court was able to state
the issue and its resolution in one paragraph
... despite dozens of pages of gibberish from
the parties to the contrary!
[3] The Court, therefore, under Erie,
applies the Texas statute of limitations,
Texas has adopted a two-year statute of
limitations for personal injury cases. See
Tex Civ. Prac. & Rem.Code § 16.003.
Plaintiff failed to file his action versus
Defendant Phillips within that two-year
time frame. Plaintiff has offered no justification, such as the discovery rule or
other similar tolling doctrines, for this
failure. Accordingly, Plaintiff’s claims
versus Defendant Phillips were not
timely filed and are barred, Defendant
Phillips’ Motion for Summary Judgment is
GRANTED and Plaintiff’s state law claims
against Defendant Phillips are hereby
DISMISSED WITH PREJUDICE. A Final
Judgment reflecting such will be entered
in due course.
CONCLUSION
After this remarkably long walk on a
short legal pier, having received no useful
guidance whatever from either party, the
Court has endeavoured, primarily based
upon its affection for both counsel, but
also out of its own sense of morbid curiosity, to resolve what it perceived to be the
legal issue presented. Despite the waste of
perfectly good crayon seen in both parties’
briefing (and the inexplicable odour of
wet dog emanating from such) the Court
believes it has satisfactorily resolved this
matter. Defendant’s Motion for Summary
Judgment is GRANTED.
At this juncture, Plaintiff retains, albeit
seemingly to his befuddlement and/or consternation, a maritime law cause of action
versus his alleged Jones Act employer,
Defendant Unity Marine Corporation, Inc.
However, it is well known around these
parts that Unity Marine’s lawyer is equally
likable and has been writing crisply in ink
since the second grade. Some old-timers
even spin yarns of an ability to type. The
Court cannot speak to the veracity of such
loose talk, but out of caution, the Court
suggests that Plaintiff’s lovable counsel
had best upgrade to a nice shiny No. 2
pencil or at least sharpen what’s left of the
stubs of his crayons for what remains of
this heart-stopping, spine-tingling action
[FN4].
FN4. In either case, the Court cautions
Plaintiff’s counsel not to run with a sharpened writing utensil in hand — he could put
his eye out.
IT IS SO ORDERED.
147 F.Supp.2d 668, 2001 A.M.C. 2358
69
News and Views
J.L Glissan QC
I
recently had occasion to consider the
life of an advocate from the perspective of the Bar. This was in the context
of becoming sole author once again of this
advocacy text, when my former companion at arms, Sydney Tilmouth, decided
to put aside the robe of the advocate in
favour of the seat of judgment. It was in
that melancholy context that I pondered
the stages of a barrister’s life. In the nineteenth century (the age of men), a cynic
said that there were three ages — the
first, in which he cares only for the work,
the second, in which he cares only for the
money, and the third, in which he cares for
neither the work nor the money.
I realised that that analysis would
not do for the twenty-first century,
but the idea stayed with me. After all,
Shakespeare gave us seven ages of man,
and Humphrey Tilling six ages of cricket.
Now the law is, of necessity, shorter than
life and neither so important nor so noble
as a game of cricket but I reasoned there
were at least five ages of the Bar.
They are not necessarily chronological,
and they are not gender specific.
The first is the age of wantage — this
is the age at which the aspiring barrister
wants everything, and wants for everything. Your wig is white and your gown
is black. The age when you can only open
your diary in subdued light or wearing
sunglasses because of the risk of snowblindness. The age when you rush to greet
a solicitor who, six months before your
call, you cheerfully crossed the street to
avoid. The age when you keep a full set of
double entry account books which remain
totally virgin on the credit side. The age
when you look forward to the end of the
financial year in the confident expectation that the Commissioner will pay you
money. The age when you go to the common room, listen to the war stories of
senior members and actually find them
interesting. The age when you take the
day off to celebrate your spouse’s birthday
and nobody notices. The age when a brief
to appear in the motion list of the District
Court on an extension of time application
is more terrifying in prospect than a brief
to appear in the Full Court of the High
Court because it is so much more likely to
happen. The age when you take a solicitor
you don’t like to a lunch you can’t afford
in the hope of getting a brief to appear
before a judge you don’t know. The age
when all judges seem intelligent or at least
earned and all opponents seem intimidating.
The next age is the age of usage. The
age of the coming advocate. You have
begun to acquire a practice. Your wig is
less white, your gown is crumpled. You
receive briefs from solicitors — who practice out of the boots of cars — old cars.
This is the age when it is safe to open your
diary, even in full daylight. The age when
you become busy enough that you cast
aside the double entry account books and
move to a more traditional method of barristerial accounting — you buy a shoe box.
The age when your anticipation of the end
of the financial year is coloured more by
apprehension than by expectation. The
age when you only go to the common room
for a quick coffee and then only when you
are sure it is otherwise empty. The age
when you forget your partner’s birthday,
but you at least remember his or her
name. The age when brief is not the word
that you would use to refer to the time it
takes to do the advice for which you are
asked. The age when you take a solicitor
you don’t need to a lunch you don’t enjoy
by way of thanks for a brief you didn’t do.
The age when judges have become fallible,
and sententious, but remain unreceptive
to your quick intellect.
The third age is the age of bondage.
This is the age in which you are really
established. Your wig and gown are now
a daily part of your life, and all three are
grey. The age when you receive a constant
flow of work from solicitors who have
offices, and staff. Some of them even have
practicing certificates. This is the age
when your accounting system has become
so complicated you need a second shoebox. The age when you know that at the
end of the financial year you have to file
a partnership return, acknowledging your
silent partner, the Deputy Commissioner
of Taxation. The age when you no longer
remember where the common room is
located. In this age your practice develops in a new direction. You begin to go
to the Family Court, but alas, only as a
consumer.
The age when brief is no longer an
appropriate word for material which
arrives, not in multiple volumes, but in
multiple boxes. The age when a solicitor
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70
Lawyer’s Bookshelf
you don’t know takes you to a lunch you
don’t need in the hope of getting you to
accept a brief you don’t want. The age
when you recognise with contempt the
truth of the definition that a judge is
merely a lawyer who once knew a politician. The fourth and fifth ages are somewhat alike.
The fourth age is that of adage — the
age of seniority. This is the age at which
you have made enough mistakes to justify
putting them on paper. The age when
you get a new gown but not a new wig.
The age at which your diary has become
an annoying irrelevance forced on you
by your clerk. The age when solicitors
come to you either by force of habit or
through the force majeure of juniors. The
age when your accounting system has
entirely been taken over either by your
accountant or by your trustee. The age
when your new silent partners, the banks,
have replaced the Deputy Commissioner
of Taxation. The age when you have
reached your present position in poverty,
because every 10 years you give a house
to someone you hate. The age when the
Family Court has ceased to be a threat
and has become an old friend. The age
at which you have rediscovered the common room and tell younger members, at
every opportunity, how clever you were,
hoping they will not notice the tense. The
age when a solicitor you don’t remember
takes you to a lunch you can’t eat because
of a brief you can’t find. The age when you
are kind and considerate towards judges,
because most of them used to be your
juniors.
And now the fifth and final age — the
age of anecdotage. This is the age when
your wig, your gown and your diary have
become utterly irrelevant. The age when,
an Honorary Member of Chambers, you
walk in perpetual circles looking for your
name on the door of the room you have
sold. The age when, again, you have the
expectation of receiving money from the
Commissioner of Taxation. The age when
your stories in the common room suffer
from two defects: first, they are wrong,
tedious and no longer funny and secondly,
no one mentioned in them is still alive. The
age when a brief to appear in the motion
list of the District Court is an unlocked
for pleasure. The age when lunch is a
thing of the past and judges all treat
you with exaggerated and pitying courtesy.
Vade atque vale, Sydney Tilmouth.
Book reviewed on page 75.
Fisher and Lightwood’s
Law of Mortgage
(2nd Aust edn)
By E.L.G. Tyler, P.W. Young and Clyde
Croft
Lexis Nexis Butterworths, Australia
2005
T
HE second Australian edition of
“Fisher and Lightwood” comes ten
years after the first Australian edition.
The authors point out that the second edition has built on the work of the first edition, but with substantial parts rewritten,
expanded and rearranged in ways that
reflect current thinking.
The second Australian edition takes
its form from the tenth English edition of
Fisher and Lightwood, with the addition
of, for example, chapters 4 and 28 to deal
with the Torrens system.
The ten years since the first edition has
seen the usual growth in case law, together
with a few seminal decisions. However,
the major changes have been in statute
law, particularly in the corporations (the
Corporations Act, 2001, as well as the
CLERP reforms) and consumer rights
areas (such as the Fair Trading Act,
1999) (Preface, page vii).
The second edition has been restructured so that more emphasis is placed on
the Torrens system when dealing with
mortgages over real property.
There are over 850 pages of text, with
a further 120 pages of case and legislation
tables.
There is a new chapter on mortgagor’s
rights (chapter 12).
There is no doubt that this text
deserves its reputation as “the bible” for
questions relating to any aspect of mortgage law.
The text is written in (relatively) plain
English, explaining difficult legal concepts
clearly. For example, paragraph 8.10
(page 246) defines floating charges as
follows:
Mortgage debentures almost invariably
create a floating security. Such a security
is an immediate equitable charge on the
assets of the company for the time being,
but it remains unattached to any particular
property and leaves the company at liberty
to deal with its property in the ordinary
course of its business as it thinks fit until
the charge crystallises or becomes fixed to
the assets charged (including future assets
of the description of the assets charged
which come into existence after the crys-
tallisation of the charge: see Ferrier v Bottomer (1972) 46 ALJR 148).
The text is broken into 12 parts, ranging from mortgages and charges, parties
to mortgages, the mortgagor’s rights, void
or imperfect securities, transfer and devolution of mortgages, the mortgagee’s remedies, priorities of mortgages, incidence
of mortgage debt, discharge of mortgage,
accounts and costs, and taxation considerations to miscellaneous matters.
Chapter 1 in Part 1 starts with an outline of the mortgage in history (“In almost
all developed societies throughout the
ages, it has been expedient for people to
be able to borrow on security. The form
of the transaction has differed from age to
age and from place to place” page 12). In
this history lesson, the authors also point
out that there are only four kinds of consensual security known to Australian law:
(i) pledge; (ii) contractual lien; (iii) equitable charge; and (iv) mortgage.
Chapter 1 then proceeds to provide a
detailed overview of mortgages and other
securities generally.
Chapter 2 deals with charges and
liens; chapter 3 covers mortgages of land
at common law; chapter 4, which deals
with mortgages of Torrens system land,
is new for the Australian edition. In Part
1 there are also chapters that deal with
mortgages of chattels, mortgages of ships
and aircraft, mortgages of things in action,
debentures, special securities and second
and subsequent mortgages.
Part VI, “the mortgagee’s remedies”,
includes chapters on the mortgagee’s remedies; the personal remedy; the appointment of a receiver; the mortgagee’s right
to possession; the mortgagee’s power of
sale; foreclosure and judicial sale; procedure on foreclosure and insolvency of the
mortgagor.
As an example of the comprehensive
nature of Fisher and Lightwood, chapters 21 and 22, dealing with foreclosure,
are included because the authors (while
admitting that the remedy has only been
rarely encountered with respect to mortgages of land — page 520) claim that “economic conditions are likely to make the
remedy of foreclosure more attractive”.
The authors point out that foreclosure
is also a remedy available for mortgages
over other property, especially leasehold
and valuable personal property.
Part IX, “discharge of the mortgage”,
includes chapters on redemption;
redemption proceedings; the release of
the debt or security; waiver and allied
concepts; merger; destruction or loss of
71
the property; and discharge or modification by statute.
Chapter 32 covers redemption. There
are ninety-three separate topics covered
in the chapter, ranging from rights of
redemption all the way through to extinguishment of the equity of redemption by
time on mortgages of land.
The second Australian edition of
Fisher and Lightwood is a “must own” for
all practitioners who practise in property
law and any aspect of mortgage lending
law.
W.G. Stark
Interpreting Statutes
Suzanne Corcoran and Stephen
Bottomley (Eds)
The Federation Press, 2005
Pp v–xi, Table of Cases xii–xviii,
Table of statutes xix–xxii, 1–317,
Index 318–330
I
N this age when governments appear
to take great pride in the quantity (if
not quality) of their legislative output, it
is unsurprising that the Honourable Chief
Justice Spigelman has observed that
“[t]he law of statutory interpretation has
become the most important single aspect
of legal practice” (2001) 21 Aust Bar Rev.
224. Aside from a good legal dictionary,
about the only book of common application to every legal practice is a good book
on statutory interpretation.
Corcoran and Bottomley’s book,
Interpreting Statutes, takes a different
approach to the several other Australian
texts on statutory interpretation. Rather
than approaching its subject on a holistic
basis, the book presents a series of essays,
each directed at explaining a theoretical
premise of interpretation, or the application of interpretative theories to a particular area of law. The rationale for the book,
says Corcoran in the introduction, is “to
consider the fundamental importance of
statutes and their interpretation across
various fields of regulation”.
With one exception, each of the essays
is authored by a practising academic. The
Honourable Justice Finn contributes a
chapter on the interaction of statutes and
the common law.
Four initial chapters deal with the need
for, and theories of, statutory interpretation. Somewhat anomalously, they are
interrupted by a chapter on constitutional
interpretation, which, while fundamental,
appears lonely in part one.
Part two of the book is devoted to an
analysis of statutory interpretation as it
72
applies to certain selected legal areas.
Separate chapters are devoted to human
rights law, native title law, corporations
law, employment law, criminal law, law
enforcement immunity, discrimination
law, family law and health law. In addition
to targeting a specific legal area, most
chapters approach their subject from
a particular identified perspective. For
example, the chapter dealing with discrimination law compares the interpretive
approaches of tribunals and courts, while
the chapter about family law considers
judicial approaches to legislation regarding parenting orders. In contrast, the
chapters on human rights and corporations law adopt a more general approach
to their subject matter.
While each chapter is interesting in its
own right, and the first part of the book
is of general academic interest, the book
seems to fall between two stools as a
work of practical application. For general
practitioners, it is probably too specialised
and academic. For practitioners who specialise in a particular area of law, the short
chapter relevant to his or her practice is
likely to provide inadequate justification
for purchasing the entire book.
Stewart Maiden
Estate Planning, A
Practical Guide for
Estate and Financial
Service Professionals
Michael Perkins and Robert
Monahan
Lexis Nexis Butterworths, 2005
Pp i–xi, 1–425 (including index)
T
HE book follows the structure for an
undergraduate course which is taught
by the authors in the Faculty of Law of
the University of Technology in Sydney.
Upon reading, it is fair to say that the
book is designed to introduce students
to the basic concepts that are relevant to
estate planning. For example, at page 7
the authors emphasise that it is necessary
to understand the cultural background of
the client, such as their religious beliefs
and their cultural heritage, when offering
advice as to how they should manage and
make provision for their estate.
Whilst the book covers many topics,
such as the nature of trusts, the making of
a will and succession, I found of particular
interest the way the authors dealt with
the taxation of estates. Whilst the law of
income taxation is a well travelled path,
the CGT Legislation and the rulings of the
Commissioner create difficulties, particularly in the surrender of life interests. The
authors’ discussion of this topic is very
helpful.
Under the heading “Responsibility” the
authors examine as estate practice the
financial service industry and managing
the client–advisor relationship. The matters may be outside a strict legal framework but are an important part of the
estate planning industry.
At the back of the book as appendices
to the versions and chapters the authors
include forms and precedents. Amongst
the forms is one which I would describe
as an interview sheet. It is well designed.
The authors have given careful thought to
the content of the appendices which will
be of considerable assistance for such
planners.
What is perhaps a little unfortunate
is that the book does not contain a list
of cases nor of statutory references. The
book is New South Wales slanted. For
a Victorian practitioner, even though
much of the Wills Act is reflected in the
New South Wales legislation, there are
important differences. In particular the
Part IV provisions of the Administration
and Probate Act 1958 do not follow the
New South Wales legislation, in definition
as to the class of persons who may make
a claim, nor do the Victorian provisions
reflect the claw back provisions contained in the New South Wales legislation.
Notwithstanding, it is a guide to have on
one’s shelf for those practitioners who are
involved in advising in this area.
John V. Kaufman QC
Carter’s Guide to
Australian Contract Law
2006
By J.W. Carter
Lexis Nexis Butterworths
Pp vii–xlv; 3–640; Index 641–659
T
HIS text is essentially both a student guide and the basis for a set of
lecturer’s lesson plans. It covers all the
traditional contract areas of study such
as formation, terms, performance discharge, rescission, remedies and defences
in a simple and easy to understand style,
nicely set out with relevant sub-headings.
There is a “quick quiz” section after each
chapter and a CD with more expanded
problems and solutions. It has a glossary
of contract terms and a “how to” chap-
ter that includes sample contracts and
instructions for drafting.
The introductory chapter defines and
explains the origins and philosophical
background to the development of contract law, putting the topic in perspective.
It includes what the author refers to in
the glossary as a “Contract continuum”;
a diagrammatic representation of the life
of a contract that makes it easy for the
reader to conceptualise the formation and
performance stages of a contract. This
will be particularly helpful when analysing
a contractual problem.
The chapters on the substantive elements include an extended discussion on
at least one case to highlight a particular
principle, and the relevant contractual
principles discussed in each chapter are
underlined for clarity and easy reference.
Whilst the book is primarily a “starter
text” for students, it will also serve as
a ready reference for practitioners who
wish to quickly refresh their memory on
basic principles.
C.J. King
Whilst there are many texts on evidence law, the authors have produced a
concise format that will be an invaluable
resource for anyone who wishes to keep
abreast of this subject. Each chapter follows a logical sequence that provides an
introduction, definition and explanation of
the legal principles and rule of evidence.
This is followed by edited judgments that
have the essential passages necessary to
illustrate the issues. There are questions
with an analysis and discussion of the
issues posed in the questions demonstrating how to apply the rules to solve
evidentiary problems. Where relevant, the
Uniform Evidence Acts are considered
and compared to the common law and
State legislation.
The text explains the law of evidence
in a comprehensible manner and is an
ideal reference for all those involved in
litigation.
C.J. King
Rules of Evidence in
Australia: Text and
Cases
By Geoffrey Gibson
The Federation Press, 2001
By Kenneth J Arenson and Mirko
Bagaric
Pp vii–xlvi, 1–629, Index 631–639
T
HE law of evidence is an area that
many students and practitioners have
difficulty with. Often that difficulty is not
realised until confronted with an evidentiary problem that requires an immediate
answer. This is especially so because the
laws of evidence vary between State and
Commonwealth jurisdictions.
What are referred to as the Uniform
Evidence Laws apply in the federal
courts, Australian Capital Territory, New
South Wales and Tasmania, with the
possibility that they may be adopted by
other States. Currently, the Victorian Law
Reform Commission has recommended
that Victoria adopts the Uniform Evidence
Laws, with minor changes to mirror the
current provisions of the Commonwealth
and New South Wales Evidence Acts 1995.
Meanwhile, the Evidence Act 1958 (Vic)
and the common law apply in Victoria.
Different rules apply between the Victoria
and the Uniform Evidence Acts, for example, the rules relating to the exception to
the admission of hearsay evidence and the
production of original documents.
The Arbitrator’s
Companion
I
NTERNATIONALLY, arbitration has
become a very big ticket item.
Corporations that specialise in putting
large amounts of time and money into
countries not famous for their strong public institutions have, understandably, been
attracted to the prospect of resolving disputes about their investments in fora
unaffected by the “vicissitudes” of national
courts. The proliferation of Bilateral
Investment Treaties, the use of the
International Centre for Settlement of
Investment Disputes (ICSID) and the
prospect of enforcing arbitral awards in
jurisdictions with well established legal
systems (potentially against the off-shore
assets of the country in which the investment was made) have done much to promote the use of international arbitration.
In Europe (at least) it is also well
accepted that properly conducted domestic arbitration can have the advantages of
relative speed, reduced cost, informality
and, significantly, privacy. All this has
made arbitration (be it domestic or international) a substantial part of the practise
of many major law firms in the UK and
Europe.
As Geoffrey Gibson notes in his very
readable guide to arbitration, in this country there has been much less enthusiasm
for the arbitral process. While there are a
number of eminent arbitration practitioners in this country (and at this Bar), generally speaking, in Australia there seems
to have been some reluctance to embrace
the virtues of arbitration. No doubt this
reflects the generally high quality of
justice dispensed by courts throughout
Australia. Perhaps, it also reflects the
Australian practitioner’s instinctive sense
of the warnings sounded by the Rt Hon
Sir Michael Kerr LJ in his important work
“Arbitration v Litigation — the Macao
Sardine Case”.1 Whatever the reasons,
there is no doubt that Gibson’s helpful
book will help foster a better understanding of arbitration and its potential advantages.
The book is divided into five parts
under the following headings: 1) the law
relating to arbitration; 2) the practice of
arbitration; 3) elements of law for arbitrators; 4) glossary of legal terms for arbitrators; and 5) sources of law for arbitrators.
Part 1 begins with a discussion of arbitration generally, putting it in its historical and legal context. It continues with a
useful summary of the procedural and
jurisdictional issues likely to face an arbitrator, and explains the major decisions
of Australian and UK courts in relation
to these matters. Part 2 is a very practical
guide to what happens when. Each of the
pertinent steps in arbitration is identified,
with useful precedents indicating how
things should be done. Part 3 touches on
areas of the law likely to arise in a commercial arbitration. This section is clearly
directed at “expert” arbitrators without
legal training. Most barristers will profess
(if not possess) a greater depth of understanding of these issues than appears in
this work. For lay arbitrators, however,
this section provides a concise and practical guide to some important legal concepts. Part 4 is a glossary of legal terms,
which does a similar job. Part 5 contains
extracts from (NSW) legislation, Arbitral
Rules and Conventions most likely to be
of use.
This is a concise and practical book. It
is full of tips designed to keep the arbitral
process nimble and free from the heaviness and delay that can beset formal litigation. The suggested informal approaches
to procedure and evidence will clear
a quick path to the heart of a dispute.
Importantly, however, the author pays
due regard to the need to balance such
efficiencies against the protections that
formality provide. While the informality
of arbitration invites one to dispense with
the complex procedural and evidentiary
requirements of formal litigation, this
73
creates risks. In particular, the prospect
of one party feeling (particularly in retrospect) that it was prejudiced by the
procedure adopted and did not get an
opportunity to properly articulate its case.
The need to balance these issues is neatly
and cleverly pointed out at various places
in Gibson’s work. The section on evidence,
which notes the link between the law of
evidence and the principles of procedural
fairness, is a good example. There is even
a nod (albeit begrudging) to the role of
pleadings.
If Gibson has his way, practitioners
in this country will stop talking “a lot of
nonsense” about pleadings, and start to
pay greater attention to the potential
advantages of arbitration. If that occurs,
and arbitrations proliferate, barristers and
others finding themselves in unfamiliar
arbitral territory would do very well to
have this “companion” at hand.
Note
1. Arbitration International, [1987] Vol 3,
p.79
A.T. Strahan
Death Investigation and
the Coroner’s Inquest
By Ian Freckelton and David Ranson
Oxford University Press
Pp i–lix, 1–780; appendices 781–894,
bibliography 895–915, index 916–930
H
OT off the press, this substantial
and learned tome co-authored by
Dr Ian Freckelton of the Victorian Bar
and Associate Professor David Ranson
(Deputy Director of the Victorian Institute
of Forensic Medicine) was launched by the
Chief Justice of Victoria, The Honourable
Marilyn Warren at a function at the
Melbourne Coroner’s Court on 31 May
2006. The Chief Justice — who also wrote
a Foreword to this volume — touched on
the ancient and historical antecedents of
the coronial function, and paid tribute
to the internationalist perspective of the
book, which is the probably the single
most distinguishing feature putting this
work in a league of its own.
The authors have drawn on a vast
array of scholarly writing from England,
Canada, Wales and Ireland, to name just
a few sources, to illuminate the practice
of law and medicine in Australia and New
Zealand. However, they are also conscious
that this is a work set in a regional context
so there are liberal references through74
out to theory and practice in Papua New
Guinea, Singapore, Hong Kong and Fiji, as
well as the Pacific region generally.
This is a work of intense scholarship,
not only by reason of its setting within
broad historical and geographical references. At the same time it is a tome
without borders, considering its topics
from the vantage points of every state in
Australia; comparatively with overseas
jurisdictions; and not just from the theoretical vantage point but from a practical,
applied, forensic and advocacy standpoint.
It is also cross-disciplinary, so whether you
are a lawyer with an interest in the medicine or a doctor with an interest in the
law, or a crime investigator, or a member
of parliamentary counsel with a brief to
draft law reform proposals, there will be
something of relevance and interest in this
volume to the task at hand.
Even a “dip in where ye may” approach
reveals that this is a scholarly and erudite
offering where the authors intersperse
their encyclopaedic knowledge of medicine and law with extracts from poems and
other literary allusions and quotations, as
well as numerous photographs, drawings
and illustrations. The authors state that
their hope or expectation is that the book
will divert, inform, challenge and confront.
One only has to glance through the intriguing array of colour photographs of the various types of gunshot wounds to find the
latter expectation alone thoroughly met.
However, this is not to say that it is a
work which is everything to everyone and
hence nothing to anybody. Its detail is as
useful a map to the issues as any practitioner in any discipline would want, as the
following list of Contents amply demonstrates:
Chapter 1: Death Investigation from an
Historical Perspective, looks at the system
of death investigation.
Chapter 2: Death Investigation from
an International Perspective, looks at the
forms of death investigation.
Chapter 3: Death Investigation: Operational Roles, looks at the operation of the
modern coronial office.
Chapter 4: Deaths and Other Reported
Incidents, sets out the legal framework in
Australia and New Zealand but also refers
to the UK context, Canada, Ireland, Asia
and the Pacific.
Chapter 5: Powers of the Coroner,
examines the coroner’s power to undertake investigations and monitor the results
of findings and recommendations.
Chapter 6: Death Scene Investigation
and Chapter 7: Specialist Death Scenes
and Investigations, together cover the
practical aspects of investigating particular types of deaths.
Chapter 8: International Disaster
Management: Mass Fatalities, covers those
natural disasters including the tsunami and
Louisiana hurricane, as well as those that
occur in military conflict such as in Bosnia
and Serbia and also terrorist events such
as the Bali bombings and civil unrest.
Chapter 9: The Role of the Forensic
Pathologist, covers the role, training, and
skill sets of forensic pathologists.
Chapter 10: The Autopsy: Medical
Issues, examines autopsy procedures
including a description of radiographic
techniques which although intrusive yield
a wealth of probative information about
causes of death.
Chapter 11: Autopsies: Legal and
Cultural Issues, examines families’ rights
to oppose the conduct of procedures and
discusses the difficult balance between
public health, and investigative, personal
and cultural considerations that have been
considered by the courts in recent years.
Chapter 12: Identification of Human
Remains, covers modern techniques used
in identification.
Chapter 13: Specialist Medical and
Scientific Investigations, covers a wide
range of investigations.
Chapter 14: The Interpretation of
Injuries and Medical Findings, includes
whether the findings give rise to homicide.
Chapter 15: The Medical Report and
the Giving of Expert Evidence, covers
how the results of medical investigations
are documented and presented in the
coroner’s court, including practical guidance for medical practitioners and other
experts who are asked to a give evidence
or write reports.
Chapter 16: Advocacy, outlines the
process in the coroner’s court, given that it
is inquisitorial not adversarial and requires
different techniques; there is considerable
discussion of how the techniques may best
be deployed on behalf of families or those
at risk of adverse findings on recommendations in inquests.
Chapter 17: Inquests, sets out in
detail the process and procedure at
Inquest hearings, their parameters and
the requirements of procedural fairness.
Australian and New Zealand case law is
the focal point but international case law
is extensively drawn upon.
Chapter
18:
Inquest
Findings.
Recommendations and Reports, is supplemented by 10 detailed appendices, including one providing examples of coronial
findings and recommendations.
Chapter 19: Appeals, Reviews and
Opening of Inquests, concludes the
sequence of legal chapters by dealing with
an assessment of the permissible grounds
for applications for review.
The final chapter — The Future —
poses some questions about the strengths
and weaknesses of the coronial function
and advances some proposals for reform
to ensure the office remains relevant,
dynamic and alive to community expectations.
This project must have seemed initially like a Herculean task but has been
executed by Renaissance men in the
true sense of the word, resulting in a
feat of modern superhuman effort. It is
enlivened by extensive case studies from
diverse jurisdictions and an abundance
of illustrative and reference material. No
one involved in death investigations and
inquests should be without a copy of this
essential resource.
Judy Benson
Being the fourth edition of
Cross Examination: Practice and
Procedure
By J.L. Glisson QC
Lexis Nexis Butterworths, 2005
Pp v–xxv, 1–255, Index 257–263
T
HE art of advocacy is communication
and before one can communicate, the
listener’s attention must be engaged. The
author engages attention immediately in
an entertaining manner, by his reproduction of W.S. Gilbert’s lolanthe’s, The Lord
Chancellor’s Song and his Preface, in
which he outlines his view that there are
five ages of the Bar. The age of wantage,
when new barrister’s wig is white and
gown black; the age of usage, when the
wig is less white and gown crumpled; the
age of bondage, when the wig and gown
are part of daily life and grey; the age of
adage, when a new gown is purchased
but not a new wig; and finally, the age of
anecdotage when one’s wig, gown and
diary have become utterly irrelevant and
“lunch is a thing of the past and judges
treat you with exaggerated and pitying
courtesy”.
Doubtless, many readers of the text will
spend time contemplating which age they
fall into!
The text is comprehensive and
describes how to prepare for and conduct
a case. It is clearly written, describing the
basic techniques of advocacy, preparation
and case analysis followed by the opening,
examination in chief, cross-examination,
re-examination, rebuttal and reply, objections and the closing address. The chapter
on cross-examination includes a section on
the seven deadly sins of cross-examination
that draws on Professor Irving Younger’s
well known “Ten Commandments of Crossexamination” that will be familiar to recent
Bar Readers’ Course participants. Extracts
of cross-examinations, including Oscar
Wilde by Carson; Vaquier by Hastings and
Askin by Evatt are reproduced.
There is a separate chapter dealing
with appeals. Checklists are provided
throughout the book which summarise
and underscore the key elements.
Those who have recently come to
the Bar will find the text an invaluable
resource. A concise chapter on etiquette
and ethics describes how to address the
judge and opposing counsel and generally conduct oneself in court. The author’s
six rules of “semantic abominations” and
advice on how to cite case law will be helpful to new barristers. For example, one
should not “seek to tender” a document,
simply tender it. The use of “we” is a regal
term, the royal “we”, and not appropriate
for use in court.
The book has something to offer for
new and experienced barristers alike.
Colin King
Partnership Law
(6th Edn)
By Geoffrey Morse
Oxford University Press, 2006
Pp i–xlix, 1–325, Index 327–336
I
N 1890, the Partnership Act (UK)
became the law codifying much of the
existing common law of partnership.
The Bill (which became the Partnership
Act) had first been drafted in 1879 by Sir
Frederick Pollock although in the succeeding decades the Bill was substantially
altered but not necessarily improved.
Shortly after the Partnership Act (UK)
became law, that legislation was more1 or
less2 (usually more) copied in all of the
then Australian colonies and New Zealand
as part of the colonies’ domestic law. In
addition, Malaysia, Singapore and the
Anglophile provinces of Canada (together
with such exotic locations as the Isle of
Man, the Cayman Islands and Scotland!)
adopted a form of the English Act. Today,
partnership law as practised in these juris-
dictions remains centred on the wording
of the Partnership Act as interpreted and
applied by the courts over the succeeding
century or more.
The sixth edition of Partnership Law
by Professor Geoffrey Morse provides a
broad view of partnership law as developed by the courts in those many common
law jurisdictions who adopted a form of
the Partnership Act 1890 (UK). The
author notes the book’s initial purpose
of serving as a student text, however its
role is now much wider and it provides
a comprehensive guide and text for legal
practitioners and others in relation to partnership law. Practitioners in all Australian
jurisdictions will draw useful insights from
this work.
Of particular relevance to Australian
lawyers are the chapters dealing with relationship of partners and outsiders (chapter 4), partners to each other (chapter 5),
partnership property (chapter 6) and the
chapters dealing with termination whether
by way of dissolution or winding up or
insolvency (chapters 7 and 8).
In addition there is discussion of possible developments and issues related to
limited liability3 and international partnerships.
Although the work is not specifically
tailored to the various state Partnership
Acts in Australia, this work is a useful
adjunct to Higgins & Fletcher — The
Law of Partnership in Australia and
New Zealand.
Partnership Law provides an up-todate and accessible general reference to
the law of partnerships and provides an
extremely wide analysis drawing substantially from courts in many different
jurisdictions, all of whom are joined by
the need to interpret similar provisions to
those first found in the Partnership Act
1890 (UK). This work is to be commended
to those who have specialist interest
in commerce and commercial relationships and in particular to the formation,
regulation and dissolution of partnerships.
P.W. Lithgow
Notes
1. Queensland, Victoria, Tasmania and New
Zealand copied the UK Act, but renumbered
the sections. New South Wales and South
Australia enacted almost identical Acts to
the UK Act.
2. Western Australia based its Act on the 1879
Bill but essentially followed the UK Act.
3. Sir Frederick Pollack had made provision for
limited partnerships in the original Bill but
this was excluded from the Partnership Act
(UK) 1890.
75
Principles and Methods
of Law and Economics:
Basic Tools for
Normative Reasoning
By Nicholas L. Georgakopoulos
New York, Cambridge University
Press, 2005
P
ROFESSOR Georgakopoulos is Professor of Law at Indiana University
School of Law. Professor Georgakopoulos
received his Master’s Degree and
Doctorate from Harvard Law School,
where he specialized in finance and the
regulation of financial markets. His publications are cited prominently, so it is said,
including citations, by the US Supreme
Court and the Securities Exchange
Commission.
Professor Georgakopoulos’ book is a
textbook on the principles and methods
of law and economics. The work examines
in detail the relevance of economics to the
analysis of legal problems, in particular in
framing of laws. The publishers claim it
does so in the context of moral philosophy, political theory, egalitarianism and
other methodological principles.
The book is divided into two parts, the
first deals with the principles whereby
economics overlaps with legal issues, and
the second describes the economic tools
available for empirical application of the
economic principles including statistics,
probability distributions and pricing uncertainty.
What is the relevance of this to the
practising barrister?
Economics essentially deals with the
theory of the efficient allocation of scarce
resources. However, in an advanced society such as ours, the allocation of scarce
resources is usually dictated or influenced
by law. It is in this field, where one is looking for efficiency, equity, and efficacy,
that the principles of economics and law
overlap.
Laws are able to create rights and
obligations which may assist the market
to achieve a satisfactory resolution of
competing interests. For example, the
law may facilitate damaged neighbours of
a polluting factory achieving satisfactory
compensation for the pollution. Market
forces may then permit production to
continue where both the producer and
the neighbours negotiate a satisfactory
regime of production and compensation.
In this case the market aided by the law
regulates the degree of pollution that is
76
tolerable to the neighbours and the producer without regulation by government.
Professor Georgakopoulos examines
how economic tools such as this may
be used in normative reasoning on legal
issues. Normative reasoning is to be distinguished from positive or descriptive
reasoning. Normative reasoning seeks
to establish what the law should be.
Descriptive analysis focuses on what is
and is not applicable to scientific studies
and analysis. Professor Georgakopoulos
applies these economic principles in areas
such as tort and the distribution of wealth
in taxation.
The work may be of interest to those
framing the law but has little practical
use for a barrister. On the other hand,
it will provide the reader with a useful introduction to the overlap between
economics and law which is relevant in
many legal areas such as insurance, personal injuries, contract, trade practices,
industrial relations and consumer protection.
It is, however, not a book for the fainthearted. Although it is said to be an introductory work, it is quite technical, and
in particular in describing the economic
tools to assist and assess normative legal
reasoning.
R. McK. Robson
Australian Constitutional
Law & Theory:
Commentary & Materials
(4th edn)
By Tony Blackshield and George
Williams
Federation Press, 2006
Pp v–x1vi, 1–1417
Appendix 1418–1452
Index 1453–1474
A
USTRALIAN Constitutional Law, 4th
edition, by Blackshield and Williams is
one of the foremost texts on constitutional law. This text has evolved from the
first edition in 1996 and is still the primary
recommended text for constitutional law
in most Australian universities. That is not
to say that the text is limited to students;
it is equally relevant to practitioners,
researchers, government officials and
politicians who need to appreciate and
understand the principles and basis for
our constitutional framework.
The book incorporates developments
in immigration and terrorism law that
have occurred in the three years since
the publication of the third edition in
2002. The fourth edition is not a slightly
amended version of the third, but has
been substantially rewritten. The format
is the same as previous editions, each
chapter commencing with an explanation
of the topic, then supported with commentaries from relevant sources and case
extracts, supplemented by a list of references for further reading.
The fourth edition is comprehensive
in its coverage of constitutional law and
retains all the classic constitutional law
cases and includes significant new cases
such as Al-Kateb v Goodwin (2004)
219 CLR 562 that confirmed the continued detention of a detainee under
the Migration Act 1958 (Cth) and who
has no prospect of being removed form
Australia.
The recent changes to the industrial relations law brought about by the
Workplace Relations Amendment (Work
Choices) Act 2005 (Cth) relies partly on
the Commonwealth’s corporations power
under s.51 (xx) of the Constitution, rather
than its industrial relations power under
s.51 (xxxv). Those readers who have an
interest in industrial relations will find the
extensive chapters on the industrial relations and corporations power an ideal way
of reviewing the constitutional framework
before embarking on further research. The
Commonwealth’s use of the corporations
power has only evolved since the decision
in Strickland v Rocla Concrete Pipes Ltd
(Concrete Pipes Case) (1971) 124 CLR
468 that overruled Huddart Parker &
Co Pty Ltd v Moorehead (1909) 8 CLR
330, and resulting in the constitutional
foundation for the Trade Practices Act
1974 (Cth).
The chapter on constitutional change
includes a new section on a Bill of Rights
in Australia, a particularly topical issue. It
provides extracts from the Constitution
of the United States of America and
South Africa, the Human Rights Act
1998 (UK); and the Human Rights Act
2004 (ACT) that came into force in 2004,
together with extracts from relevant
papers on the topic.
There are new sections including the
separation between church and state, and
remedies in constitutional law.
The earlier editions of this text have
been an excellent foundation for those
commencing a study of constitutional law
and also an excellent reference text for
others. The fourth edition continues the
tradition.
C.J. King
Sport
Australian Bar XI: Hong
Kong Tour, Easter 2006
W
EDNESDAY 16 April 2006 saw
the gathering of a motley group of
lawyers purporting to represent
the Australian Bar cricket team on a three
match tour to Hong Kong. Team shirts and
“baggy blacks” were distributed, and the
team previously only existing in emails
became a reality.
The Australian Bar XI had not played
or toured since an English tour in the mid1980s, however, two members of the 2006
team, Larry King and Thos Hodgson had
played on the English tour some 20 years
earlier.
The team was made up of “cricketers”
from New South Wales, Queensland and
your correspondent, the sole Victorian.
Your correspondent/player was “selected”
on availability, (although my children
maintain the illusion that I was selected
on “form”).
Three games had been organized and
the first was a 35 over game against the
Kowloon Cricket Club.
After a short taxi ride we found ourselves welcomed at the Kowloon CC
(which includes swimming pool, squash
courts, restaurants and bar) on one of
the most expensive pieces of cricketing
real estate on the planet. Kowloon made
9/206 off the 35 overs. The Australian Bar
needed about six an over for victory. After
a slow start the Australian Bar powered
home, knocking 80 off the last nine overs
to win with an over to spare. After a great
match a team dinner was put on by the
Kowloon CC and most of the team retired
for an evening at the Happy Valley Races.
Thursday was a rest day, which was
in fact a euphemism for a day spent on
a junk cruising the Hong Kong harbour
and eating at a restaurant on Lanna Island
a never-ending procession of splendid
Chinese food. Consumption of beer was
required.
Having won one victory, the Friday
saw the team heading to the Hong Kong
Cricket Club for a 35 over game, this time
against Craigengower CC.
The HKCC had kindly made the
Australian Bar XI and accompanying family members honorary members for the
days that we were there.
Queenslanders dominated the batting, taking the team to 7/224 and then
Craigengower lost early wickets to finish
at 9/160. The team was regaled with hospitality after the game and a warning that
the HKCC side to be played the next day
over 45 overs was likely to be a tougher
prospect.
Saturday saw a strong HKCC side
stumble to 4/20, however HKCC rallied to
7/236 off 45 overs with one of the HKCC
openers completing his century off the
final ball of the innings.
The target of 237 looked achievable
until a middle order collapse (including
your correspondent — dodgy lbw from
local umpire), however the late order got
the Australian team home with an over to
spare. Talk of the modern day “invincibles”
went on well into the Hong Kong night.
In all it was a great tour both on and
off the field. Many happy memories and
lasting friendships between players and
their families were made (together with
a cherished “baggy black). May we hope
for further tours and perhaps a second (or
third) Victorian representative.
It was a privilege to play at both KCC
and HKCC and to be treated with such
hospitality by the clubs. To the members of the Australian Bar team — many
thanks, particularly to our captain Lachlan
Gyles.
Tour Stars
Nick Bilinsky
79 v KCC and 81v
HKCC
Dave Caroll
37 v KCC, 28 no v CCC
and 41 v HKCC
Stewart Roberts 50 no v HKCC
Phil Greenwood 29 no v CCC
Rob Anderson
3/31 v KCC, 34 v CCC
and 3/44 v HKCC
Dave Crawford 2/44 v KCC, 76 v CCC
and 3/46 v HKCC
Richard Scruby 30 v KCC and 29 v
HKCC
Your correspondent fielded well.
Peter Lithgow
77

137 VBN Winter - Victorian Bar

Transcription

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